1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-26-1999

U.S. v. Hunte

Precedential or Non-Precedential:

Docket 97-1987

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Recommended Citation

"U.S. v. Hunte" (1999). 1999 Decisions. Paper 239.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/239
Filed August 26, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-1987 

UNITED STATES OF AMERICA 

v. 

EARL PACKER HUNTE, 

a/k/a Earl Packer, 

a/k/a E 

Earl Packer Hunte, 

 Appellant 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Criminal No. 96-cr-00539-9) 

District Judge: Honorable Harvey Bartle, III 

Submitted Pursuant to Third Circuit LAR 34.1(a) 

March 22, 1999 

Before: BECKER, Chief Judge, COWEN, Circuit Judge, 

and STAGG,* District Judge 

(Filed: August 26, 1999) 

_________________________________________________________________ 

*Honorable Tom Stagg, U.S. District Judge for the Western District of 

Louisiana, sitting by designation. 
OPINION OF THE COURT 

COWEN, Circuit Judge 

Defendant Earl Packer Hunte was convicted by a jury in 

the United States District Court of the Eastern District of 

Pennsylvania of one count of conspiracy to distribute and 

to possess cocaine with intent to distribute, in violation of 

21 U.S.C. S 846. The government's evidence against Hunte, 

the sufficiency of which he does not challenge on appeal, 

established that he was a member of a violent, large-scale 

narcotics trafficking organization led by Darryl Coleman 

and Terrence Gibbs. See generally United States v. Gibbs, 

Slip. Op. at ___ (filed concurrently herewith). Specifically, 

the evidence demonstrated that Hunte agreed to distribute 

cocaine supplied by Gibbs, and that he agreed to carry out 

acts of violence to protect the illegal enterprise.

Hunte's appeal raises a single issue. He contends that 

the government violated the so-called "anti-gratuity 

statute," 18 U.S.C. S 201(c)(2), by making promises of 

leniency to several cooperating witnesses in exchange for 

their truthful testimony against him.1 Relying exclusively on 

the Tenth Circuit's now vacated opinion in United States v. 

Singleton, 144 F.3d 1343 (10th Cir. 1998) (Singleton I), 

rev'd en banc, 165 F.3d 1297 (10th Cir.) (Singleton II), cert. 

denied, 119 S. Ct. 2371 (1999), Hunte argues that the 

District Court erred in not suppressing the testimony of 

these cooperating witnesses. 

Because Hunte did not raise this issue in the District 

Court, we would ordinarily review it only for plain error. See 

Fed. R. Crim. P. 52(b). Due to the frequency with which this 

argument has been raised in the courts of this Circuit since 

_________________________________________________________________ 

1. Hunte has not provided us with the cooperating witnesses' plea 

agreements. Based on the parties' description of those agreements, we 

understand them to be of the usual sort. That is to say, the government 

agreed to consider filing a motion under S 5K1.1 of the Sentencing 

Guidelines in exchange for the witnesses' complete cooperation in the 

investigation and prosecution of Hunte and others, including providing 

testimony at trial. See Hunte Br. at 3; Gov. Br. at 2. 

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the issuance of Singleton I, however, we will take this 

opportunity to address the issue squarely. We hold that 

section 201(c)(2) does not prohibit the government from 

promising leniency to cooperating witnesses in exchange for 

truthful testimony. In so deciding, we align ourselves with 

the en banc decision of the Tenth Circuit, as well as every 

other circuit court that has considered the issue. See 

Singleton II, 165 F.3d at 1298; accord United States v. 

Stephenson, ___ F.3d ___, 1999 WL 437082, at *7 (2d Cir. 

June 30, 1999); United States v. Lara, #6D 6D6D# F.3d ___, 1999 

WL 431140, at *9 (1st Cir. June 30, 1999); United States v. 

Condon, 170 F.3d 687, 688-89 (7th Cir. 1999); United 

States v. Johnson, 169 F.3d 1092, 1097 (8th Cir. 1999); 

United States v. Lowery, 166 F.3d 1119, 1122-24 (11th Cir. 

1999); United States v. Ramsey, 165 F.3d 980, 987 (D.C. 

Cir. 1999); United States v. Ware, 161 F.3d 414, 418 (6th 

Cir. 1998), cert. denied, 119 S. Ct. 1348 (1999); United 

States v. Haese, 162 F.3d 359, 366-68 (5th Cir. 1998), cert. 

denied, ___ S. Ct. ___, 1999 WL 241837 (1999). Our 

reasons for rejecting the holding of Singleton I are set forth 

briefly below; given the numerous federal appellate

decisions addressing this issue over the last year, an 

extended discussion would be redundant. 

The criminal statute in question, 18 U.S.C. S 201(c)(2), 

provides in pertinent part: 

 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. S 201(c)(2). The Tenth Circuit panel in Singleton 

I concluded, inter alia, that the plain meaning of the term 

"whoever" includes the government, and that, accordingly, 

a government attorney's promise of leniency to a witness in 

exchange for that witness' testimony violates S 201(c)(2). 

144 F.3d at 1345-48. We disagree. 

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In Nardone v. United States, 302 U.S. 379 (1937), the 

Supreme Court described a canon of statutory construction 

that provides that a statute does not apply to the 

government or affect governmental rights unless the text of 

the statute expressly includes the government. Id. at 383; 

see also The Dollar Savings Bank v. United States, 86 U.S. 

(19 Wall) 227, 229 (1873) ("It is a familiar principle that the 

King is not bound by any act of Parliament unless he be 

named therein by special and particular words.") The 

Nardone Court stated that the canon has been applied in 

two categories of cases. "The first is where an act, if not so 

limited, would deprive the sovereign of a recognized or 

established prerogative title or interest." Id. at 383. The 

second category is "where a reading which would include 

such [government] officers would work obvious absurdity." 

Id. at 384. We agree with the courts that have held that 

this type of case -- where the government has agreed to 

move for leniency in exchange for testimony -- falls within 

both categories described in Nardone. See Ramsey, 165 

F.3d at 988-90; Singleton II, 165 F.3d at 1300-01; Ware, 

161 F.3d at 419. 

First, construing section 201(c)(2) to preclude the

government from offering leniency in exchange for truthful 

testimony would deprive the sovereign of an established 

and recognized prerogative. "The prosecutorial prerogative 

to recommend leniency in exchange for truthful testimony 

arises from English common law, see Ware, 161 F.3d at 

419, and has been repeatedly approved by the United

States Supreme Court . . .." Ramsey, 165 F.3d at 988 

(citing The Whisky Cases, 99 U.S. 594 (1878)); see also 

United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th 

Cir. 1987) ("No 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."). We 

are not persuaded by the Singleton I panel's claim that 

section 201(c)(2) is removed from this category because the 

statute only limits the practices of the government's agents, 

not the sovereign itself. 144 F.3d at 1345-46.2 If section 

_________________________________________________________________ 

2. In so concluding, the Singleton I court relied on the Supreme Court's 

statement in Nardone that "[t]he rule of exclusion of the sovereign is 

less 

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201(c)(2) did indeed prohibit promises of leniency in 

exchange for testimony, it is surely the government's 

interests that would be affected, not those of its 

representatives. See Ware, 161 F.3d at 421 ("When an 

assistant United States Attorney (AUSA) enters into a plea 

agreement with a defendant, that plea agreement is 

between the United States government and the 

defendant."). 

Second, the application of section 201(c)(2) to the

government in cases such as this would work an obvious 

absurdity. As many courts have observed, interpreting 

section 201(c)(2) to forbid promises of leniency in exchange 

for truthful testimony would "preclude enforcement or limit 

the efficacy of the terms of several more recent -- and more 

specific -- statutes [or Rules or Guidelines enacted 

purusant to statute], all of which presuppose the potential 

use of testimony in exchange for non-prosecution 

agreements, leniency recommendations, and/or other 

valuable promises." United States v. Lara, 1999 WL 

431140, at *9 (1st Cir. June 30, 1999); see also Ramsey, 

165 F.3d at 990; Singleton II, 165 F.3d at 1305-06.

Numerous statutes adopted after the anti-gratuity law, for 

example, authorize sentence reductions for defendants who 

have provided "substantial assistance" in the investigation 

or prosecution of others. 28 U.S.C. S 994(n) (instructing the 

United States Sentencing Commission to ensure that 

Guidelines "take into account a defendant's substantial 

assistance in the investigation or prosecution of another 

person who has committed an offense"); 18 U.S.C.S 3553(e) 

(authorizing court to impose a sentence below a statutory 

minimum upon motion of the government "to reflect a

defendant's substantial assistance in the investigation or 

prosecution of another person"); U.S.S.G. S 5K1.1 (allowing 

government motion for a sentence reduction below the 

applicable sentencing range when a defendant provides 

substantial assistance); Fed. R. Crim. P. 35(b) (allowing 

government motion for a sentence reduction based on post- 

_________________________________________________________________ 

stringently applied where the operation of law is upon the agents or 

servants of the government rather than on the sovereign itself." Nardone, 

302 U.S. at 383 (footnote omitted). 

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sentencing substantial assistance). It is plain to us that the 

"substantial assistance" referred to in these statutes 

includes providing testimony against others. See U.S.S.G. 

S 5K1.1(a)(2) (in deciding the extent of a"substantial 

assistance" sentencing departure, court may consider "the 

truthfulness, completeness, and reliability of any 

information or testimony provided by the defendant") 

(emphasis added). Accordingly, adopting the holding of 

Singleton I would create an "absurd conflict," Ramsey, 165 

F.3d at 990, between section 201(c)(2) and the above-cited 

statutes.3 

Finally, we reject the holding of Singleton I because it is 

completely implausible to us that Congress, in enacting 

section 201(c)(2), intended to sub silentio overrule the 

government's long-standing practice of entering into 

leniency-for-testimony agreements. Ramsey, 165 F.3d at 

991. As the en banc Tenth Circuit explained, "we must 

presume if Congress had intended that section 201(c)(2) 

overturn this aspect of American legal culture, it would 

have done so in clear, unmistakable, and unarguable

language." Singleton II, 165 F.3d at 1301; cf. Green v. Bock 

Laundry Machine Co., 490 U.S. 504, 521 (1989) ("A party 

contending that legislative action changed settled law has 

the burden of showing that the legislature intended such a 

change."). There is nothing in the statute that even 

approaches the type of clear statement that we would 

expect if Congress had intended the result reached by the 

Singleton I panel. Nor is there any statement in the relevant 

legislative history which would support such a conclusion. 

Ramsey, 165 F.3d at 991. 

For the foregoing reasons, the District Court did not 

commit any error -- plain or otherwise -- in admitting the 

testimony of the cooperating witnesses against Hunte.4 

Accordingly, Hunte's conviction will be affirmed. 

_________________________________________________________________ 

3. Other courts have also observed that the Singleton I panel's holding 

would create a conflict with the Witness Relocation and Protection Act, 

18 U.S.C. S 3521 and the federal immunity statutes, 18 U.S.C. SS 6001- 

05. See, e.g., Ramsey, 165 F.3d at 990. 

4. We note that this case presents only the question of whether section 

201(c)(2) prohibits the government from making promises of leniency in 

exchange for testimony. It does not present the situation, for example, in 

which a witness has received money from the government, arguably in 

exchange for testimony. See, e.g., United States v. Medina, 41 F. Supp. 

2d 38 (D. Mass. 1999). We have no occasion here to consider the 

applicability, if any, of section 201(c)(2) in such a case. 

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A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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