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. e du/thir dc ir c uit_1999/239Filed 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)

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*Honorable Tom Stagg, U.S. District Judge for the W estern 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 Dis trict of Pennsylvania of one count of conspiracy to distribu te and to possess cocaine with intent to distribute, in vi olation of 21 U.S.C. S 846. The government's evidence against Hunte, the sufficiency of which he does not challenge on a ppeal, established that he was a member of a violent, larg e-scale narcotics trafficking organization led by Darryl Co leman and Terrence Gibbs. See generally United States v. Gibbs, Slip. Op. at ___ (filed concurrently herewith). Spe cifically, the evidence demonstrated that Hunte agreed to dist ribute cocaine supplied by Gibbs, and that he agreed to ca rry out acts of violence to protect the illegal enterprise.

Hunte's appeal raises a single issue. He contends t hat the government violated the so-called "anti-gratuit y statute," 18 U.S.C. S 201(c)(2), by making promises of leniency to several cooperating witnesses in exchan ge for their truthful testimony against him.1 Relying exc lusively on the Tenth Circuit's now vacated opinion in United S tates v. Singleton, 144 F.3d 1343 (10th Cir. 1998) (Singleto n I), rev'd en banc, 165 F.3d 1297 (10th Cir.) (Singleton II), cert. denied, 119 S. Ct. 2371 (1999), Hunte argues that t he District Court erred in not suppressing the testimo ny of these cooperating witnesses.

Because Hunte did not raise this issue in the Distr ict Court, we would ordinarily review it only for plain error. See Fed. R. Crim. P. 52(b). Due to the frequency with w hich this argument has been raised in the courts of this Circ uit since

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1. Hunte has not provided us with the cooperating w itnesses' plea agreements. Based on the parties' description of th ose 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.

2the 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 exch ange for truthful testimony. In so deciding, we align oursel ves 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 State s 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 S tates v. Condon, 170 F.3d 687, 688-89 (7th Cir. 1999); Unite d States v. Johnson, 169 F.3d 1092, 1097 (8th Cir. 19 99); United States v. Lowery, 166 F.3d 1119, 1122-24 (11 th Cir. 1999); United States v. Ramsey, 165 F.3d 980, 987 ( D.C. Cir. 1999); United States v. Ware, 161 F.3d 414, 41 8 (6th Cir. 1998), cert. denied, 119 S. Ct. 1348 (1999); U nited States v. Haese, 162 F.3d 359, 366-68 (5th Cir. 199 8), cert. denied, ___ S. Ct. ___, 1999 WL 241837 (1999). Our reasons for rejecting the holding of Singleton I ar e 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, o ffers or promises anything of value to any person, fo r or because of the testimony under oath or affir mation given or to be given by such person as a wit ness upon a trial, hearing, or other proceeding, befor e any court ... authorized by the laws of the United Sta tes to hear evidence or take testimony ... shall be fine d under this title or imprisoned for not more than two ye ars, or both.

18 U.S.C. S 201(c)(2). The Tenth Circuit panel in S ingleton I concluded, inter alia, that the plain meaning of the term "whoever" includes the government, and that, accord ingly, a government attorney's promise of leniency to a wi tness in exchange for that witness' testimony violates S 201 (c)(2). 144 F.3d at 1345-48. We disagree.

3In Nardone v. United States, 302 U.S. 379 (1937), t he

Supreme Court described a canon of statutory constr uction 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 princi ple that the King is not bound by any act of Parliament unless h e be named therein by special and particular words.") Th e Nardone Court stated that the canon has been applie d in two categories of cases. "The first is where an act , if not so limited, would deprive the sovereign of a recognize d or established prerogative title or interest." Id. at 383. The second category is "where a reading which would inc lude such [government] officers would work obvious absur dity." Id. at 384. We agree with the courts that have held that this type of case -- where the government has agree d to move for leniency in exchange for testimony -- fall s within both categories described in Nardone. See Ramsey, 1 65 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 t ruthful testimony would deprive the sovereign of an establi shed and recognized prerogative. "The prosecutorial prer ogative to recommend leniency in exchange for truthful test imony 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 98 8 (citing The Whisky Cases, 99 U.S. 594 (1878)); see also United States v. Cervantes-Pacheco, 826 F.2d 310, 3 15 (5th Cir. 1987) ("No practice is more ingrained in our c riminal justice system than the practice of the government calling a witness who is an accessory to the crime for whic h the defendant is charged and having that witness testif y 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 bec ause the statute only limits the practices of the government 's agents, not the sovereign itself. 144 F.3d at 1345-46.2 If section

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2. In so concluding, the Singleton I court relied o n the Supreme Court's statement in Nardone that "[t]he rule of exclusion of the sovereign is

less

4201(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 a n 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 obvi ous absurdity. As many courts have observed, interpreti ng 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 enacte d purusant to statute], all of which presuppose the p otential 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 Ra msey, 165 F.3d at 990; Singleton II, 165 F.3d at 1305-06. Numerous statutes adopted after the anti-gratuity l aw, for example, authorize sentence reductions for defendan ts who have provided "substantial assistance" in the inves tigation or prosecution of others. 28 U.S.C. S 994(n) (instr ucting the United States Sentencing Commission to ensure that
Guidelines "take into account a defendant's substan tial assistance in the investigation or prosecution of a nother person who has committed an offense"); 18 U.S.C.S 3 553(e) (authorizing court to impose a sentence below a sta tutory minimum upon motion of the government "to reflect a defendant's substantial assistance in the investiga tion or prosecution of another person"); U.S.S.G. S 5K1.1 ( allowing government motion for a sentence reduction below th e applicable sentencing range when a defendant provid es substantial assistance); Fed. R. Crim. P. 35(b) (al lowing government motion for a sentence reduction based on post-

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stringently applied where the operation of law is u pon the agents or servants of the government rather than on the sover eign itself." Nardone, 302 U.S. at 383 (footnote omitted).

5sentencing substantial assistance). It is plain to us that the

"substantial assistance" referred to in these statu tes includes providing testimony against others. See U .S.S.G. S 5K1.1(a)(2) (in deciding the extent of a"substant ial assistance" sentencing departure, court may conside r "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," Rams ey, 165 F.3d at 990, between section 201(c)(2) and the abov e-cited
statutes.3

Finally, we reject the holding of Singleton I beca use it is completely implausible to us that Congress, in enac ting section 201(c)(2), intended to sub silentio overrul e the government's long-standing practice of entering int o leniency-for-testimony agreements. Ramsey, 165 F.3d at 991. As the en banc Tenth Circuit explained, "we mu st 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. Gree n v. Bock Laundry Machine Co., 490 U.S. 504, 521 (1989) ("A p arty 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 eve n approaches the type of clear statement that we woul d expect if Congress had intended the result reached by the Singleton I panel. Nor is there any statement in th e relevant legislative history which would support such a conc lusion. Ramsey, 165 F.3d at 991.

For the foregoing reasons, the District Court did n ot commit any error -- plain or otherwise -- in admitt ing the testimony of the cooperating witnesses against Hunt e.4 Accordingly, Hunte's conviction will be affirmed.

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3. Other courts have also observed that the Singlet on 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 questio n of whether section 201(c)(2) prohibits the government from making prom ises of leniency in exchange for testimony. It does not present the sit uation, for example, in which a witness has received money from the governm ent, 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.

6A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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