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.

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. 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 cooperation. ...

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 trials. ...

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 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. ...

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 considerations.

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 court.

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. ...