In April 1992, a detective of the Wichita Police Department contacted local
Western Union agents to determine if drug dealers were using Western Union
services to transfer drug money. He found a large number of wire transfers over
$1,000 which bore similar identifiers, including similar names of recipients,
and similar names, addresses and phone numbers of senders. The records led
authorities to a group of people whom they believed were involved in a
conspiracy to sell drugs. Further investigation indicated the drug business was
begun by men who had moved from California to Wichita. They recruited local
women to wire proceeds of drug sales back to California to pay for more
cocaine; some of these women also received wire transfers on behalf of the
conspiracy and transported cocaine from California to Wichita. Ms. Singleton
was identified as one who transferred and received money for the conspiracy.
She was the common-law wife of Eric Johnson, who regularly bought, packaged,
and sold drugs, and she was listed as either the sender or recipient on eight
wire transfers suspected to have been sent on behalf of the conspiracy.
Handwriting experts confirmed that her handwriting was present on paperwork
accompanying the eight wire transfers.
Ms. Singleton and others were charged in a superseding indictment with multiple
counts of money laundering and conspiracy to distribute cocaine. Before trial
she moved to suppress the testimony of Napoleon Douglas, a coconspirator who
had entered into a plea agreement with the government. The basis for her motion
was that the government had impermissibly promised Mr. Douglas something of
value--leniency--in return for his testimony, in violation of 18 U.S.C. §
201(c)(2) and Kansas Rule of Professional Conduct 3.4(b), which prohibits
offering unlawful inducements to a witness. The district court denied the
motion, ruling that § 201(c)(2) did not apply to the government.
At trial Mr. Douglas testified against Ms. Singleton. He stated that the
government, through an assistant United States attorney, had promised to file a
motion for a downward departure if he testified truthfully. His testimony of
the government's promise in this regard is somewhat confused, however, and in
Mr. Douglas's written plea agreement the government made no firm promise to
file a motion for a downward adjustment. The agreement merely stated the
government would file a motion under USSG § 5K1.1 or 18 U.S.C. §
3553(e) if, in its sole discretion, Mr. Douglas's cooperation amounted to
substantial assistance. Both the testimony and plea agreement make clear Mr.
Douglas understood that the actual grant of any downward adjustment was
entirely within the purview of the sentencing court.
The plea agreement does, however, state three specific promises made by the
government to Mr. Douglas in return for his explicit promise to testify. First,
the government promised not to prosecute Mr. Douglas for any other violations
of the Drug Abuse Prevention and Control Act stemming from his activities
currently under investigation, except perjury or related offenses. Second, it
promised "to advise the sentencing court, prior to sentencing, of the nature
and extent of the cooperation provided" by Mr. Douglas. Third, the government
promised "to advise the Mississippi parole board of the nature and extent of
the cooperation provided" by Mr. Douglas. Id. Mr. Douglas agreed, "in
consideration of the items listed in paragraph 2 above . . . [to] testify[]
truthfully in federal and/or state court . . . ."
I. Statutory Construction of 18 U.S.C. §210(c)(2)
A. The Language and Plain Meaning
The issues before us are (1) whether the government's conduct was prohibited
either by § 201(c)(2) or Kansas Rule of Professional Conduct 3.4(b); (2)
if it was, whether Mr. Douglas's testimony should have been suppressed; and (3)
whether the record contains sufficient evidence to remand for a new trial...
[The portion of the transcript exerpted here addresses only the issues of the
bribery statute, 18 U.S.C. § 201(c)(2)]
Section 201(c)(2) could not be more clear. It says:
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 upon a trial, hearing, or
other proceeding, before any court . . . authorized by the laws of the United
States to hear evidence or take testimony . . . shall be fined under this title
or imprisoned for not more than two years, or both.
18 U.S.C. § 201(c)(2). We note at the outset that § 201 is to be
broadly construed to further its legislative purpose of deterring corruption.
The class of persons who can violate the statute is not limited. "Whoever"
completes the following elements commits a crime. First, the statute requires a
gift, offer, or promise, either direct or indirect, to a person. Second, the
gift, offer, or promise must be "of value." Third, the gift, offer, or promise
must be made "for" or "because of" the person's sworn testimony at a trial or
other proceeding before an authorized court. The state of mind required to
violate the statute is knowledge that the thing of value is given for or
because of testimony.
The first issue facing us is whether the assistant United States attorney,
acting on behalf of the government, is within the statutory class "whoever."
The 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. The canon applies only to
two classes of cases, however. The first class in which the government is
presumptively excluded from general statutory language involves statutes which
would deprive the sovereign of "a recognized or established prerogative title
or interest." A classic example is the exemption of the sovereign from statutes
of limitation. The second class is comprised of those statutes which would
create an absurdity if applied to the government, as, for example, a speed
limit applied to a policeman pursuing a suspect.
Even if § 201(c)(2) could be said to deprive the sovereign of an
established prerogative, two further exceptions remove § 201(c)(2) from
this class of statutes. First, the presumption that the sovereign is excluded
unless named does not apply "where the operation of the law is upon the agents
or servants of the government rather than on the sovereign itself." In the case
before us, § 201(c)(2) does not restrict any interest of the sovereign
itself; it operates only upon an agent of the sovereign, limiting the way in
which that agent carries out the government's interests. ...
The second exception provides that the government is subject to a statute, even
if it infringes upon a recognized government prerogative, if the statute's
purpose is to prevent fraud, injury, or wrong. ... The anti-gratuity provision
of § 201(c)(2) indicates Congress's belief that justice is undermined by
giving, offering, or promising anything of value for testimony. If justice is
perverted when a criminal defendant seeks to buy testimony from a witness, it
is no less perverted when the government does so. Because § 201(c)(2)
addresses what Congress perceived to be a wrong, and operates to prevent fraud
upon the federal courts in the form of inherently unreliable testimony, the
proscription of § 201(c)(2) must apply to the government. Further, the
interests of the United States as sovereign militate in favor of applying
§ 201(c)(2) against federal prosecutors. The sovereign's interests are in
the enforcement of its laws and the just administration of its judicial system;
applying § 201(c)(2) to all parties in that judicial system advances both
interests.
Having escaped the first class of cases in which the canon applies, we
determine whether our case falls within the second: cases in which "public
officers are impliedly excluded from language embracing all persons" because
such a reading would "work obvious absurdity." A brief overview of legal
principles and the common law will confirm the rationality of the statute's
result and indicate the scope of the tradition behind its application to the
government.
One of the very oldest principles of our legal heritage is that the king is
subject to the law. King John was taught this principle at Runnymede in A.D.
1215, when his barons forced him to submit to Magna Carta, the great charter
that imposed limits on the exercise of sovereign power. ... Justice Brandeis
expounded as follows on the principle:
Decency, security and liberty alike demand that government officials shall be
subjected to the same rules of conduct that are commands to the citizen. In a
government of laws, existence of the government will be imperilled if it fails
to observe the law scrupulously. Our Government is the potent, omnipresent
teacher. For good or for ill, it teaches the whole people by its example. Crime
is contagious. If the Government becomes a lawbreaker, it breeds contempt for
law; it invites every man to become a law unto himself; it invites anarchy. To
declare that in the administration of the criminal law the end justifies the
means--to declare that the Government may commit crimes in order to secure the
conviction of a private criminal--would bring terrible retribution. Against
that pernicious doctrine this Court should resolutely set its face.
Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J.,
dissenting).
This venerable principle will not give way to the expediency of the
government's present practices without legislative authorization.
The policy expressed in § 201(c)(2) has long been enforced at common law.
The public policy against payments to fact witnesses is expressed in the
majority of states in both the law of contracts and in ethical rules, which we
address below. The policy is weighty enough that contracts to pay fact
witnesses are void as violative of public policy ... .
The judicial process is tainted and justice cheapened when factual testimony is
purchased, whether with leniency or money. Because prosecutors bear a weighty
responsibility to do justice and observe the law in the course of a
prosecution, it is particularly appropriate to apply the strictures of §
201(c)(2) to their activities.
The United States Attorney is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore,
in a criminal prosecution is not that it shall win a case, but that justice
shall be done. As such, he is in a peculiar and very definite sense the servant
of the law, the twofold aim of which is that guilt shall not escape nor
innocence suffer ... .
II. The Law Enforcement Justification
The government asserts, without argument or authority, that agreements for
testimony between the government and a witness are not contemplated by this
statute. Its position is that its agreement in return for testimony was
justified and legitimate, and that Congress could not have intended §
201(c)(2) to hamper the punishment of crime by bringing within its sweep this
government practice. Even assuming such a practice, our answer is that the
matter was one of policy for Congress to decide. ...
To answer the government's vague argument that some overriding policy should
prevent application of this statute to the government's conduct, we will raise
sua sponte the justification of law enforcement authority. ... The
justification can be generally described as follows: a peace officer, prison
guard, or private citizen authorized to act as a peace officer may, to the
extent necessary to make an arrest, prevent an escape, or prevent the
commission of a crime, violate a criminal statute if the conduct which
constitutes the violation is reasonable in relation to the gravity of the evil
threatened and the importance of the interest to be furthered. ...
The Supreme Court's more general statement of the rule that "[c]riminal
prohibitions do not generally apply to reasonable enforcement actions by
officers of the law," embraces field enforcement activity. The Court has held,
for example, that the government's limited undercover participation in an
unlawful drug operation is "a recognized and permissible means of
investigation." United States v. Russell, 411 U.S. 423, 432 (1973) ...
.
The conduct of police, investigators, and law enforcement agents is regularly
evaluated against the standard of what is legitimate and reasonably necessary
to enforce the law. But we have found no case in which prosecutors, in their
role as lawyers representing the government after the initiation of criminal
proceedings, have been granted a justification to violate generally applicable
laws. The government's violation of § 201(c)(2) ... is entirely unrelated
to detecting crime. Once the exigencies of field enforcement are satisfied, we
can find no policy by which prosecutors may be excused from statutes regulating
testimony presented to the federal courts. ... We decline to expand the meaning
of "enforcement action" beyond its historical scope of detection, apprehension,
and prevention of crime.
Because the government's statutory violation occurred not in a field
investigation but in the context of testimony which was to be presented to the
court, we further hold its action was not "reasonable." The chasm between the
government's present conduct and reasonable law enforcement actions can be
illustrated by analogy to the FBI's Abscam operation, under which operatives
and undercover agents offered bribes to public officials and arrested those who
accepted the bribes. Although Abscam created controversy and dissent in the
courts, it was held a legitimate means of detecting public corruption. The
government's present inducement for testimony goes much further. Reasonable law
enforcement actions stop with detecting crime and observing enough to prove it.
The government's statutory violation unreasonably exceeds this purpose, and is
the more egregious because the intended product of the violation is testimony
presented in court. We conclude the government's violation of § 201(c)(2)
was neither "reasonable" nor an "enforcement action." ...
III. Section 201(c)(2) in Relation to Other Statutes
The government argues that several provisions of law authorized it to make its
agreement with Mr. Douglas. The government apparently refers to an unwritten
agreement with Mr. Douglas to make a sentence reduction recommendation.
Although any such agreement is not before us because it is not clear from the
record that it was made, we will construe the government's argument as one that
it had statutory authorization for the three written promises it did make to
Mr. Douglas for his testimony.
The federal criminal sentencing statute, 18 U.S.C. § 3553(e), provides,
"Upon motion of the Government, the court shall have the authority to impose a
sentence below a level established by statute as minimum sentence so as to
reflect a defendant's substantial assistance in the investigation or
prosecution of another person who has committed an offense." In addition, 28
U.S.C. § 994(n) instructs the United States Sentencing Commission to
ensure that guidelines reflect "the general appropriateness of imposing a lower
sentence than would otherwise be imposed, including a sentence that is lower
than that established by statute as a minimum sentence, to take into account a
defendant's substantial assistance in the investigation or prosecution of
another person who has committed an offense." Accordingly, USSG § 5K1.1
provides that the government may move for a downward departure from the
guidelines if it determines the defendant has "provided substantial assistance
in the investigation or prosecution of another person who has committed an
offense . . . ." USSG § 5K1.1. "The appropriate reduction shall be
determined by the court for reasons stated that may include . . . the
truthfulness, completeness, and reliability of any information or testimony
provided by the defendant." Id. at § 5K1.1(a)(2). The government also
cites Fed. R. Crim. P. 35(b), which says, "The court, on motion of the
Government made within one year after the imposition of the sentence, may
reduce a sentence to reflect a defendant's subsequent, substantial assistance
in the investigation or prosecution of another person who has committed an
offense . . . ."
Each of these provisions of law authorizes only that substantial assistance can
be rewarded after it is rendered; none authorizes the government to make a deal
for testimony before it is given, as the government did with Mr. Douglas.
Consequently the statutes cannot justify the government's promises in this
case.
However § 201(c)(2) prohibits even the rewarding of testimony after it is
given: it prohibits anything of value to be given, offered or promised "because
of" testimony "given." 18 U.S.C. § 201(c)(2). The sentencing provisions
may thus appear to conflict by authorizing something of value (a motion for and
grant of sentence reduction) to be given "because of" testimony rendered. We
believe the statutes can be read together in this way: in light of §
201(c)(2), "substantial assistance" does not include testimony. Congress
enacted the sentencing provisions against the backdrop of its general
prohibition against giving anything of value for or because of testimony.
Against this background, § 994 authorizes the Sentencing Commission to
reward all forms of substantial assistance other than testimony.
Our reading of the statutes will not impair the substantial assistance
provisions, because a defendant can substantially assist an investigation or
prosecution in myriad ways other than by testifying. Nor will our holding
drastically alter the government's present practices. The government may still
make deals with accomplices for their assistance other than testimony, and it
may still put accomplices on the stand; it simply may not attach any promise,
offer, or gift to their testimony...
VI. Remedy
In the circumstances before us, the appropriate remedy for the testimony
obtained in violation of § 201(c)(2) is suppression of its use in Ms.
Singleton's trial. ...
REVERSED and REMANDED for a new trial.
[This decision of a three judge panel of the Tenth Circuit Court of Appeals
was vacated by the full twelve judge panel shortly after it was issued. On January 8, 1999, the full
court ruled rejected Singleton's argument and ruled in favor of the government. ]
 | 
Read the 
