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FEAR-LIST BULLETIN: Important Tenth Circuit opinion!
- U.S. v. Sonya Singleton #97-3178
Date: Fri, 10 Jul 1998 03:39:13 -0700
From: Brenda Grantland
Organization: Forfeiture Endangers American Rights http://www.fear.org/
To: "fear-list@mapinc.org"
by Brenda Grantland, Esq.
In a dramatic 3-0 decision, the Tenth Circuit ruled on July 1 that promising an informant leniency or some other valuable reward in exchange for his testimony is illegal under 18 U.S.C. Sec. 201(c)(2), such testimony is inadmissible AND the criminal defendant against whom he testified is entitled to a new trial!
This is an astounding decision, with far reaching effects on "modern" law enforcement, where "turning snitches up the ladder" and reverse stings have become prosecutors' favorite ways of "making cases." Often, especially in conspiracy cases, the entire case hinges on the testimony of one or more informants, all of whom are promised leniency or financial rewards. (This is so common in fact, that there is even a term for it -- a "dry conspiracy" is one which did not turn up any drugs during the investigation, only the words of informants that there had been drug trafficking in the past.)
This case will also have far reaching implications in forfeiture cases, where the informant is often promised a reward of up to 25% of the value of the property forfeited. (See 19 U.S.C. Section 1619, Rewards to informers.) What better way is there to buy testimony? State and local cops who take the stand in federal forfeiture cases may also be motivated by the promise of reward, for their department stands to earn up to 90% of the value of the property forfeited, under the Federal Equitable Sharing Program. (See 28 U.S.C. Section 524.)
U.S. v. Sonya Singleton #97-3178 is a bold decision, but it is extremely well-reasoned, supported with voluminous authority, and convincing. Hopefully it will hold up under the attacks of the DOJ. I think FEAR should file an amicus brief when it goes up. We need to get other groups to do the same, for you can bet the 49 state attorneys general who filed an amicus brief in $405K will jump into the fray again.
This a long opinion, but well worth reading. It contains some great language and an excellent discussion of the issue "is the government above the law?" Judge Kelly, writing the opinion of the court (Chief Judge Seymour and Judge Ebel were on the panel), said:
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. See United States v. Hernandez, 731 F.2d 1147, 1149 (5th Cir. 1984); United States v. Evans, 572 F.2d 455, 480 (5th Cir.), cert. denied, 439 U.S. 870 (1978).
The class of persons who can violate the statute is not limited. "Whoever" completes the following elements commits a crime. 18 U.S.C. 201(c)(2). First, the statute requires a gift, offer, or promise, either direct or indirect, to a person. See id. Second, the gift, offer, or promise must be "of value." Id. 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. Id. The state of mind required to violate the statute is knowledge that the thing of value is given for or because of testimony. See United States v. Campbell, 684 F.2d 141, 150 (D.C. Cir. 1982) (construing parallel subsection); United States v. Brewster, 506 F.2d 62, 82 (D.C. Cir. 1974) (quoting United States v. Brewster, 408 U.S. 501, 527 (1972)) (same).
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. See Nardone v. United States, 302 U.S. 379, 383 (1937); United States v. Herron, 87 U.S. (20 Wall.) 251, 255 (1873). The canon applies only to two classes of cases, however. See Nardone, 302 U.S. at 383. 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." Id. 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. See id. at 384.
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." Id. at 383. See United States v. Arizona, 295 U.S. 174, 184 (1935); Dollar Sav. Bank v. United States, 86 U.S. (19 Wall.) 227, 239 (1873); see also City of Buffalo v. Hanna Furnace Corp., 305 N.Y. 369, 376 (1953). 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. "There is no presumption that regulatory and disciplinary measures do not extend to such officers. Taken at face value the language indicates the purpose of Congress to govern conduct of its own officers and employees as well as that of others." Arizona, 295 U.S. at 184 (holding that the Secretary of the Interior was clearly subject to a law prohibiting "any person" from constructing a dam on navigable waterways without the consent of Congress).
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. Nardone, 302 U.S. at 384; Herron, 87 U.S. (20 Wall.) at 255-56. Nardone itself relied upon this principle to hold that federal agents were covered by the statutory term "anyone" in the 1934 federal wiretap statute. See Nardone, 302 U.S. at 382-84. 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. See id. at 384. 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." Id. 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. See Kuzma v. IRS, 821 F.2d 930, 932 (2d Cir. 1987) ("[E]stablished principles of statutory construction compel us to seek a rational and sensible construction of the language in question . . . .").
One of the very oldest principles of our legal heritage is that the king is subject to the law. See Romans 13. 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. See William Sharp McKechnie, Magna Carta, 36-42 (1914). One of the first modern expositions of this hallowed principle is found in Lex, Rex,(1) whose title indicated the fundamental shift in our legal heritage toward the primacy of the law and the subordinate position of the king. 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. See Arizona v. Maricopa County Med. Soc'y, 457 U.S. 332, 354 (1982).
The policy expressed in 201(c)(2) has long been enforced at common law. See Hamilton v. General Motors Corp., 490 F.2d 223, 227-28 (7th Cir. 1973).(2) 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. See 6A Arthur Linton Corbin, Corbin on Contracts 1430 (1962); Restatement of Contracts 552(1) (1932); Restatement (Second) of Contracts, 73 cmt. b (1981); 7 Richard A. Lord, Williston on Contracts 15:6 (4th ed. 1997). Such contracts also fail for lack of consideration. See, e.g., Williston, supra, at 15:6. Every citizen has the legal duty to testify to facts within his knowledge, and any witness may be compelled to do so by subpoena and civil contempt proceedings. We note that agreements for testimony are not always used in federal prosecutions.
In United States v. Bambulas, 471 F.2d 501, 505 (7th Cir. 1972), the court held:From the testimony at trial and the sentences imposed on Bambulas and Russell, there is no indication that immunity or a promise of leniency had been offered by federal authorities to Russell. In addition, Fortner testified that federal agents had emphatically stated to him that there would be "no deals" as reward for his testimony.
Id. See also United States v. Meinster, 619 F.2d 1041, 1045 (4th Cir. 1980). 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.
Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 803 (1987) (quoting Berger v. United States, 295 U.S. 78, 88 (1935), overruled on other grounds by Stirone v. United States, 361 U.S. 212 (1960)). We conclude the statute's application to government officials, far from being absurd, is at the center of our legal tradition.
Isn't that beautiful? There is hope for our judicial system yet!
Brenda Grantland