U.S. v. Lowery

• Decision Date: 04 August 1998
• Docket Number: No. 97-368-CR.,97-368-CR.
• Citation: 15 F.Supp.2d 1348
• Parties: UNITED STATES of America, Plaintiff, v. Oslet Franklin LOWERY, Jr., Defendant.
• Court: U.S. District Court — Southern District of Florida

15 F.Supp.2d 1348

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

No. 97-368-CR.

United States District Court, S.D. Florida.

August 4, 1998.

COPYRIGHT MATERIAL OMITTED

David Cora, Assistant United States Attorney, Adalberto Jordan, Chief, Appellate Division, Thomas E. Scott, United States Attorney, Miami, FL, for Plaintiff.

Philip Horowitz, Miami, FL, for Defendant.

ORDER

ZLOCH, District Judge.

THIS MATTER is before the Court upon the Defendant, Oslet Franklin Lowery, Jr.'s Motion To Suppress (DE 134). The Court has carefully reviewed said Motion and is otherwise fully advised in the premises.

In the instant Motion (DE 134), the Defendant has moved to suppress the anticipated testimony of his three co-Defendants, Guillermo Mallarino, Jose Ignacio Forero and Danny Morino, as the plea agreements in this matter secured such testimony in violation of Title 18, United States Code, Section 201(c)(2). On July 21, 1998, the Assistant United States Attorney and counsel for Defendant Lowery presented oral argument to this Court as to the aforementioned Motion.

Upon careful consideration of the instant Motion and of argument of counsel, the Court, for the reasons set forth below, finds that the plea agreements of the aforementioned co-Defendants in this matter violate the clear and unambiguous meaning of Section 201(c)(2). Accordingly, the Court finds that the testimony of each of said co-Defendants should be suppressed.

I. INTRODUCTION

The Court notes that the Government of the United States consists of three separate, but equal, branches: the Executive Branch, the Legislative Branch and the Judicial Branch. The actions complained of herein by Defendant Lowery were performed by the Executive Branch, acting through its Department of Justice. Therefore, for the sake of clarity, throughout this Order, such actions will be noted as those of the Executive Branch.

The Defendants, Oslet Franklin Lowery, Jr., Guillermo Mallarino, Jose Ignacio Forero and Danny Morino, were charged in a fourcount Indictment with conspiracy to import cocaine, conspiracy to possess cocaine with intent to distribute it, importation of cocaine and possession of cocaine with intent to distribute it. Prior to the trial of the abovestyled cause, Defendants Mallarino, Forero and Morino entered into cooperation plea agreements with the Executive Branch (DE Nos. 55, 58 and 65). Each agreement contemplated the substantial assistance, including but not limited to truthful testimony, of each respective Defendant. In exchange, the Executive Branch agreed "to evaluate the nature and extent of [each] Defendant's cooperation and to make [such] Defendant's cooperation, or lack thereof, known to the court at the time of sentencing" (DE 55 at 5; DE 58 at 5; DE 65 at 6). In addition, the Executive Branch agreed that if the Defendant's cooperation was of substantial assistance in the investigation and prosecution of criminal matters, the Executive Branch "may" make a motion pursuant to Title 18, United States Code, Section 3553(e), Section 5K1.1 of the United States Sentencing Guidelines or Rule 35 of the Federal Rules of Criminal Procedure. Sections 3553(e) and 5K1.1 and Rule 35 enable a sentencing court, upon motion of the Executive Branch, to depart downward from or reduce the otherwise applicable guideline sentence.

In the instant Motion (DE 134), Defendant Lowery asserts that the testimony of co-Defendants Mallarino, Forero and Morino should be suppressed as the aforementioned promises by the Executive Branch, which are contingent upon each co-Defendant's cooperation, and more precisely, testimony, violate Title 18, United States Code, Section 201(c)(2). In support of his position, Defendant Lowery cites the recent decision by the United States Court of Appeals for the Tenth Circuit, United States v. Singleton, 144 F.3d 1343 (10th Cir.1998). In Singleton, the Tenth Circuit concluded that the district court erred in denying the defendant's motion to suppress a witness' testimony where the Executive Branch, in return for such testimony, promised something of value to the witness, including advising the sentencing court of the nature and extent of the witness' cooperation. Specifically, the court determined that the Executive Branch's promises violated the plain language of Section 201(c)(2). On July 10, 1998, the Tenth Circuit vacated the Singleton opinion and granted a rehearing en banc. Although Singleton is no longer of precedential value, the Defendant adopts in its entirety the reasoning of the Singleton court.

Conversely, it is the Executive Branch's position that the Singleton case was wrongly decided and that this Court should follow the precedent of the United States Court of Appeals for the Eleventh Circuit interpreting Section 201(c)(2). In particular, the Executive Branch asserts that first, Section 201(c)(2) does not apply to the Executive Branch; second, the Eleventh Circuit's decision in Golden Door Jewelry v. Lloyds Underwriters, 117 F.3d 1328 (11th Cir.1997), has already decided the issue before this Court; third, the more specific provisions of the substantial assistance statutes should prevail over the more general Section 201(c)(2); fourth, it is a settled practice of the Executive Branch to engage in this type of agreement; and fifth, the aforementioned agreements do not violate the Florida Bar Rules of Professional Conduct. Noticeably absent from the Executive Branch's argument, however, is any recognition that the plain language of Section 201(c)(2) should control this Court's inquiry.

II. STATUTORY INTERPRETATION

In addressing the merits of the instant Motion (DE 134) as well as the Executive Branch's objections, the Court's initial task is to explore the pertinent rules of statutory construction. It is a basic tenet of statutory construction that "courts in applying criminal laws generally must follow the plain and unambiguous meaning of the statutory language." Salinas v. United States, ___ U.S. ___, ___, 118 S.Ct. 469, 474, 139 L.Ed.2d 352 (1997). Thus, the starting point for interpreting a statute is naturally the "language of the statute itself." Consumer Product Safety Com. v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980); see also, United States v. Kahn, 415 U.S. 143, 151, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974) (The starting point is the "precise wording chosen by Congress."); Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) ("There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.") (internal citations omitted). As a general rule of statutory construction, where the terms of a statute are unambiguous, and where the "statutory scheme is coherent and consistent," judicial inquiry is complete. United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981).

Indeed, courts must presume that, when enacting a statute, the legislature says what it means and means what it says; for it is a fundamental principle that "... Congress legislates with knowledge of [the] basic rules of statutory construction ..." McNary v. Haitian Refugee Center, 498 U.S. 479, 495, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). Having ascertained the plain meaning of a statute, it then becomes the sole function of the judiciary "to enforce [the statute] according to its terms." Ron Pair Enterprises, Inc., 489 U.S. at 241, 109 S.Ct. 1026 (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917)).

As the Supreme Court recognized in Deal v. United States, 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993), the meaning of a word cannot be determined in isolation. Thus, courts must draw from the language itself, the specific context of such language and the broader context of the entire statute. Robinson v. Shell Oil Company, 519 U.S. 337, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997). Further, terms which are not defined within a statute "are given their ordinary or natural meaning." National Coal Association v. Chater, 81 F.3d 1077, 1081 (11th Cir.1996) (citation omitted).

Although the legislative history of a statute is of some relevance, courts should "not resort to legislative history to cloud a statutory text that is clear." Id. at 1082 (quoting Ratzlaf v. United States, 510 U.S. 135, 147, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994)). Nor may an appeal to statutory purpose overcome the specific language of a statute, because the text is the most persuasive evidence of legislative intent. Chater, 81 F.3d at 1082; Griffin, 458 U.S. at 571, 102 S.Ct. 3245.

Indeed, the plain language approach to a statute is essentially a rational approach. As the interpretive partners of Congress, the courts have a responsibility to review the text of a statute with a common-sense degree of precision in an effort to ascertain the meaning of a statute. This common-sense reliance upon the plain statutory language also helps courts avoid the danger of mistakenly substituting their will for that of the legislature. For as United States Supreme Court Justice Antonin Scalia correctly and succinctly stated in his concurrence in INS v. Cardoza-Fonseca, 480 U.S. 421, 452, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987): "Judges interpret law rather than reconstruct legislators' intentions. Where the language of those laws is clear, we are not free to replace it with an unenacted legislative intent."

It is, however, a familiar rule of statutory construction that when a literal reading of a statutory term would produce an absurd result or one at odds with the whole statute, courts must look for other evidence of legislative intent in order to give the words their proper scope. Rector, Etc. of Holy Trinity Church v. United States, 143...