165 F.3d 1297 (10th Cir. 1999), 97-3178, United States v. Singleton

Docket Nº:97-3178.
Citation:165 F.3d 1297
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Sonya Evette SINGLETON, Defendant-Appellant. National Association of Criminal Defense Lawyers, Amicus Curiae.
Case Date:January 08, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1297

165 F.3d 1297 (10th Cir. 1999)

UNITED STATES of America, Plaintiff-Appellee,


Sonya Evette SINGLETON, Defendant-Appellant. National

Association of Criminal Defense Lawyers, Amicus Curiae.

No. 97-3178.

United States Court of Appeals, Tenth Circuit

January 8, 1999

Page 1298

John V. Wachtel, Klenda, Mitchell, Austerman & Zuercher L.L.C., Wichita, Kansas, for Defendant-Appellant.

Michael Dreeben, U.S. Department of Justice (James K. Robinson, Assistant Attorney General Criminal Division; Jackie N. Williams, United States Attorney; Michael G. Christensen, Assistant United States Attorney, Wichita, Kansas; Sean Connelly, U.S. Department of Justice, Denver, Colorado, with him on the briefs), Washington, D.C., for Plaintiff-Appellee.

Robert S. Mahler, MacDonald, Hoague & Bayless (Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, Washington; Norman R. Mueller and Rachel A. Bellis, Haddon, Morgan & Foreman, P.C., Denver, Colorado; David M. Porter, Co-Chair, NACDL Amicus Committee, Office of the Federal Defender, Eastern District of California, Sacramento, California, with him on the briefs), Seattle, Washington, for Amicus Curiae.


PORFILIO, Circuit Judge.

Sonya Singleton was convicted of money laundering and conspiring to distribute cocaine. A panel of this court reversed that conviction on the ground the prosecuting attorney violated 18 U.S.C. § 201(c)(2) when he offered leniency to a co-defendant in exchange for truthful testimony. The panel held the testimony of the co-defendant should have been suppressed and that the failure to do so was not harmless error. United States v. Singleton, 144 F.3d 1343 (10th Cir.1998). The en banc court vacated the panel decision, id. at 1361, and has now reheard the appeal. We now hold 18 U.S.C. § 201(c)(2) does not apply to the United States or an Assistant United States Attorney functioning within the official scope of the office.


The conspiracy forming the basis of Ms. Singleton's conviction required her to send and receive drug proceeds by Western Union wires. Her co-conspirator Napoleon Douglas entered into a plea agreement in which he agreed to testify truthfully in return for the government's promise not to prosecute him for related offenses, to advise the sentencing court of his cooperation, and to advise a state parole board of the "nature and extent" of his cooperation.

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Before trial, Ms. Singleton moved to suppress the testimony of Mr. Douglas on the ground the government had violated 18 U.S.C. § 201(c)(2), the so-called "anti-gratuity statute," by promising him leniency in exchange for his testimony. The district court denied the motion and Mr. Douglas testified, acknowledging the benefits he would receive in exchange for his testimony and implicating Ms. Singleton in the charged offenses. Ms. Singleton asks us to review the court's denial of her motion.


The question before us is whether section 201(c)(2) applies to the government in the prosecution of criminal offenses. Ms. Singleton argues the plain language of the statute permits no answer but that it does. As expected, the government counters such a reading is beyond the intent of Congress and clearly wrong. We review this issue of law de novo, FDIC v. Canfield, 967 F.2d 443, 445 (10th Cir.1992) (en banc), and begin our analysis with the pertinent portions of the statute itself:

(c) Whoever-


(2) 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 ... before any court ... shall be fined under this title or imprisoned for not more than two years, or both.

18 U.S.C. § 201(c)(2) (1994).

Ms. Singleton takes the position that when Mr. Douglas testified after receiving the government's promise of lenient treatment in exchange for his truthful testimony, he became a "paid 'occurrence' witness," and testimony from those of such ilk is contrary to the fundamental precepts of American justice because the payment of something of value would give the witness a strong motivation to lie. She reasons section 201(c)(2) was enacted to deter that result, and we need only apply plain meaning to the word "whoever" contained in the statute to conclude it must apply broadly and encompass the government and its representatives.

In contrast, the United States argues to allow section 201(c)(2) to sweep so broadly would not only be a radical departure from the ingrained legal culture of our criminal justice system but would also result in criminalizing historic practice and established law. The government maintains Congress did not intend to hinder the sovereign's authority to prosecute violations against the United States in this fashion.

Viewing the statute on its face, it is apparent the dispute revolves about the word "whoever." Indeed, the significance of the remaining parts of the statute is not seriously controverted. However, like many words chosen by the legislative branch to convey its intent, this one word evokes more meaning than an innocent first reading of it would portend.

As correctly argued by Ms. Singleton, "whoever" is a broad term which by its ordinary definition would exclude no one. Indeed, if one were to take the word at face value, defendant's argument becomes colorable, at least. However, the defendant's approach, while facially logical, ignores a crucial point that must be considered in any attempt to apply the statute to the issues of this case. She argues the breadth of the word " 'whoever' includes within its scope the assistant United States attorney who offered Douglas something of value in exchange for his testimony." To begin the parsing of the statute with this assumption, however, ignores a fundamental fact: the capacity in which the government's lawyer appears in the courts.

The prosecutor, functioning within the scope of his or her office, is not simply a lawyer advocating the government's perspective of the case. Indeed, the prosecutor's function is far more significant. Only officers of the Department of Justice or the United States Attorney can represent the United States in the prosecution of a criminal case. 28 U.S.C. §§ 516, 547 (1994); United States v. Navarro, 959 F.Supp. 1273, 1277 (E.D.Cal.1997), rev'd on other grounds, 160 F.3d 1254 (9th Cir.1998). Indeed, a federal

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court cannot even assert jurisdiction over a criminal case unless it is filed and prosecuted by the United States Attorney or a properly appointed assistant. See United States v. Providence Journal Co., 485 U.S. 693, 699-708, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988) (dismissing petition for certiorari for lack of jurisdiction where the petition was filed by a government lawyer acting without the authority to do so); United States v. Durham, 941 F.2d 886, 892 (9th Cir.1991) (whether Special AUSA had been properly appointed went to jurisdiction of the district court). Therefore, the government's sovereign authority to prosecute and conduct a prosecution is vested solely in the United States Attorney and his or her properly appointed assistants. Of course, it cannot be otherwise because the government of the United States is not capable of exercising its powers on its own; the government functions only through its officers and agents. We thus infer in criminal cases that an Assistant United States Attorney, acting within the scope of authority conferred upon that office, is the alter ego of the United States exercising its sovereign power of prosecution. Hence, in the attempt to apply section 201(c)(2), the United States and the Assistant United States Attorney cannot be separated. Indeed, the alter ego role 1 of the prosecutor is not unusual, for in a similar case, the Sixth Circuit has noted:

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. When an AUSA uses at trial testimony obtained through a plea agreement or an agreement not to prosecute, he does so as the government. An AUSA who, pursuant to the provisions of the United States Sentencing Guidelines, moves for a downward departure under § 5K1.1, does so as the government.

United States v. Ware, 161 F.3d 414, 421 (6th Cir.1998).

Put into proper context, then, the defendant's argument is: in a criminal prosecution, the word "whoever" in the statute includes within its scope the United States acting in its sovereign capacity. Extending that premise to its logical conclusion, the defendant implies Congress must have intended to subject the United States to the provisions of section 201(c)(2), and, consequently, like any other violator, to criminal prosecution. Reduced to this logical conclusion, the basic argument of the defendant is patently absurd.

There is even a more fundamental reason for arriving at the same conclusion, however. Although Congress may, by legislative act, add to or redefine the meaning of any word, it did not do so in the passage of section 201(c)(2). Therefore, we must presume it intended to employ the common meaning of the word. The word "whoever" connotes a being. See Webster's Third New International Dictionary 2611 (1993) (defining "whoever" as "whatever person : any person " (emphasis added)). The United States is an inanimate entity, not a being. The word "whatever" is used commonly to refer to an inanimate object. See id. at 2600 (defining "whatever" as "anything that: everything that" (emphasis added)). Therefore, construing "whoever" to include the government is semantically...

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