U.S. v. Lowery

• Decision Date: 03 February 1999
• Docket Number: Nos. 98-5228,98-5229 and 98-5231,s. 98-5228
• Parties: 12 Fla. L. Weekly Fed. C 495 UNITED STATES of America, Plaintiff-Appellant, v. Oslet Franklin LOWERY, Jr., Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Sheldred Burke, Gail Henderson, a.k.a. Gail Smith, a.k.a. Twondy G. Henderson, et al., Defendants-Appellees. United States of America, Plaintiff-Appellant, v. Randall Ward, Travis Mathis, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1119

166 F.3d 1119

12 Fla. L. Weekly Fed. C 495

UNITED STATES of America, Plaintiff-Appellant, v. Oslet Franklin LOWERY, Jr., Defendant-Appellee.

United States of America, Plaintiff-Appellant, v. Sheldred Burke, Gail Henderson, a.k.a. Gail Smith, a.k.a.

Twondy G. Henderson, et al., Defendants-Appellees.

United States of America, Plaintiff-Appellant, v. Randall Ward, Travis Mathis, Defendants-Appellees.

Nos. 98-5228, 98-5229 and 98-5231.

United States Court of Appeals Eleventh Circuit.

Feb. 3, 1999.

Dawn Bowen, Adalberto Jordan, Suzan H. Ponzoli, Asst. U.S. Attys., Miami, FL, Carol DeGraffenreidt, Asst. U.S. Atty., Fort Lauderdale, FL, for Plaintiff-Appellant.

Philip Robert Horowitz, Miami, FL, for Lowery and Ward.

Clayton Reed Kaeiser, Miami, FL, for Burke.

Gregory Antonio Samms, Miami, FL, for Henderson.

Israel Jose Encinosa, Encinosa & Joyce, Miami, FL, for Gore.

David Jonathon Joffe, Coconut Grove, FL, for Broughton.

Jane Wollner Moscowitz, Miami, FL, for Paramore.

Michael Gary Smith, Ft. Lauderdale, FL, for Mathis.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT, BLACK and CARNES, Circuit Judges.

CARNES, Circuit Judge:

This consolidated appeal involves what has come to be known as "the Singleton issue," with a related issue involving a state court professional practice rule thrown in to boot. These defendants, in separate criminal cases, prevailed upon the district court to grant their pretrial motions to suppress the testimony of their alleged co-conspirators. That expected testimony had been obtained through plea agreements in which the government promised to consider recommending a lighter sentence in exchange for the alleged co-conspirators' substantial assistance in the prosecution of the remaining defendants, i.e., these appellees.

The district court (the same judge in each case) held that such agreements, although commonplace in the criminal justice system, are prohibited by 18 U.S.C. § 201(c)(2), which makes it a crime to give or promise anything of value for testimony. The court also held that the agreements violated Rule 4-3.4(b) of the Florida Bar Rules of Professional Conduct. It suppressed the testimony obtained through the agreements on both grounds. We reverse.

I. BACKGROUND

We first discuss the procedural facts of each of the three cases.

A. THE LOWERY APPEAL

Oslet Franklin Lowery, Jr., along with his co-defendants Guillermo Mallarino, Danny Morino, and Jose Forero, was indicted for conspiracy to possess cocaine, possession of cocaine, and conspiracy to import cocaine. Only Lowery elected to proceed to trial. All four of his co-defendants, pursuant to plea agreements with the government, entered guilty pleas on the counts of conspiracy to possess cocaine and conspiracy to import cocaine.

The plea agreements stated that each co-defendant would cooperate fully with the United States Attorney's office by providing "truthful and complete information and testimony" before the grand jury, at trial, and at any other proceeding. In exchange for their cooperation, the government agreed to dismiss the remaining charges and said it might, in its discretion, recommend a "substantial assistance" sentence reduction provided for in U.S.S.G. § 5K1.1 (1997). The agreements warned that the government would not recommend a sentence reduction or downward departure if the co-defendant provided false testimony, and that the court was not obliged to grant the government's motions in any event.

Before trial, Lowery moved to suppress the testimony of his co-defendants, relying on the interpretation of 18 U.S.C. § 201(c)(2) offered by a panel of the Tenth Circuit in United States v. Singleton, 144 F.3d 1343 (10th Cir.1998), rev'd en banc, 165 F.3d 1297 (10th Cir.1999). Lowery also relied on Rule 4-3.4(b) of the Florida Bar Rules of Professional Conduct, which states that a lawyer shall not "fabricate evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness...." The Singleton panel decision had already been vacated pending reconsideration en banc, see Singleton, 144 F.3d at 1361. Indeed, that had been done just nine days after the decision was issued. The district court recognized that Singleton was no longer the law in the Tenth Circuit, but it nonetheless relied heavily upon the reasoning of that vacated decision in granting Lowery's motion to suppress his co-defendants' testimony. See United States v. Lowery, 15 F.Supp.2d 1348 (S.D.Fla.1998). The government timely filed this interlocutory appeal. See 18 U.S.C. § 3731.

B. THE BURKE APPEAL

Sheldred Burke, along with Gail Henderson, Dennis Gore, Lateeal Broughton Rodney Paramore, Samuel Collier, Randy Deonarinesingh and twelve other co-defendants, was indicted for bank fraud and conspiracy to commit bank fraud. Burke, Henderson, Gore, Broughton and Paramore elected trial by jury. The case came before the same district court judge who presided over Lowery.

Collier and Deonarinesingh reached agreements with the government, and pleaded guilty on the bank fraud count. Their plea agreements were similar to those the government reached with the Lowery co-defendants, except they did not provide for the dismissal of the remaining count, nor did they contain any explicit warning that the government would not make any recommendations in the event that the co-defendants provided false testimony. These agreements did specify, however, that the co-defendants would cooperate by providing "truthful information and testimony." (emphasis added) Burke moved to suppress the testimony of the two cooperating co-defendants, and his motion was adopted by Henderson, Burke, Broughton and Paramore. Citing the vacated panel decision in Singleton and its own earlier ruling on the motion to suppress in Lowery, the district court granted the motion. After moving unsuccessfully for reconsideration, the government appealed.

C. THE WARD APPEAL

Randall Ward, Travis Mathis, Jervaine Toote, Daniel Saunders and Celso Pinho were indicted for conspiracy to import marijuana, importation of marijuana, conspiracy to possess marijuana, and possession of marijuana. Ward and Mathis opted to exercise their right to trial.

Pursuant to plea agreements with the government, Pinho and Saunders pleaded guilty to importation of marijuana. As in the Lowery plea agreements, the government agreed to dismiss the remaining charges. The agreements were otherwise similar to the plea agreements entered into by the cooperating witnesses in Burke, that is, each one contained no specific warning against the provision of false testimony but did specify that the co-defendants would provide truthful testimony.

Mathis moved to suppress the testimony of Pinho and Saunders, and Ward adopted the motion. ¹ Again adopting its ruling in Lowery, the district court granted the motion and suppressed the co-defendants' testimony. The government appealed.

II. DISCUSSION

We review de novo the district court's interpretation of the relevant statutory provision, and its application of the law to the facts in a motion to suppress. See, e.g., United States v. Antonietti, 86 F.3d 206, 207-08 (11th Cir.1996); United States v. Phipps, 81 F.3d 1056, 1058 (11th Cir.1996).

A. 18 U.S.C. § 201(c)(2)

As we have said, this appeal involves what has come to be known as "the Singleton issue," after the now-reversed Tenth Circuit panel decision in United States v. Singleton, 144 F.3d 1343 (10th Cir.1998), rev'd en banc, 165 F.3d 1297 (10th Cir.1999). The issue is whether plea agreements of the kind found in this case violate the federal prohibition against bribing witnesses contained in 18 U.S.C. § 201(c)(2).

Since the Tenth Circuit panel issued its opinion in Singleton, three circuits have rejected its holding that government plea agreements violate § 201(c)(2). See United States v. Haese, 162 F.3d 359, 366-68 (5th Cir.1998); United States v. Ware, 161 F.3d 414, 418-25 (6th Cir.1998); United States v. Briones, 165 F.3d 918, 918 (9th Cir.1998); United States v. Carroll, 166 F.3d 334, 1998 WL 801880, at * 3 n. 4 (4th Cir. Nov. 19, 1998) (unpublished disposition). The Tenth Circuit itself, sitting en banc, has since reversed the panel decision. See United States v. Singleton, 165 F.3d 1297 (10th Cir.1999). It is not the law of any circuit.

An overwhelming number of the district courts that have considered the issue have also rejected the holding of the panel decision in Singleton. See, e.g., United States v. Johnson, 34 F.Supp.2d 535, 536-39 (E.D.Mich.1998); Hall v. United States, 30 F.Supp.2d 883, 893-97 (E.D.Va.1998); United States v. Clark, 29 F.Supp.2d 869, 870-71 (S.D.Ohio 1998); United States v. Roque-Acosta, 28 F.Supp.2d 1256, 1257-58 (D.Haw.1998); United States v. Abraham, 29 F.Supp.2d 206, 207-214 (D.N.J.1998); United States v. White, 27 F.Supp.2d 646, 649 (E.D.N.C.1998); United States v. Hammer, 25 F.Supp.2d 518, 535-36 (M.D.Pa.1998); United States v. Crumpton, 23 F.Supp.2d 1218, 1218-19 (D.Colo.1998); United States v. McGuire, 21 F.Supp.2d 1264, 1266 (D.Kan.1998); United States v. Reid, 19 F.Supp.2d 534, 535-38 (E.D.Va.1998); United States v. Arana, 18 F.Supp.2d 715, 716-21 (E.D.Mich.1998); United States v. Dunlap, 17 F.Supp.2d 1183, 1184-88 (D.Colo.1998); United States v. Guillaume, 13 F.Supp.2d 1331, 1332-35 (S.D.Fla.1998); United States v. Eisenhardt, 10 F.Supp.2d 521, 521-22 (D.Md.1998); United States v. Gabourel, 9 F.Supp.2d 1246, 1246-47 (D.Colo.1998).

Of all the federal cases, reported and unreported, that we have found dealing with this issue, only one court other than the district court in this case has agreed with the Singleton panel's conclusion. See United States v. Fraguela, 1998 WL 560352 (E.D.La. Aug. 27, 1998) (relying on Singleton and the district court decision in Lowery ), vacated on procedural grounds, 1998 WL 910219 (E.D.La. Oct. 7, 1998); see also United States v. Revis, 22 F.Supp.2d 1242, 1257-64 (N.D....