U.S. v. Reid

• Decision Date: 28 July 1998
• Docket Number: Criminal Action No. 3:98CR64.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, v. Marcellus REID, Defendant.

19 F.Supp.2d 534

UNITED STATES of America, v. Marcellus REID, Defendant.

Criminal Action No. 3:98CR64.

United States District Court, E.D. Virginia, Richmond Division.

July 28, 1998.

John Kenneth Zwerling, Lisa Bondareff Kemler, Zwerling & Kemler, P.C., Alexandria, VA, Mark J. Rochon, Rochon, Roberts & Stern, Washington, DC, for Marcellus Reid, defendant.

David John Novak, Hannah Lauck, United States Attorney's Office, Richmond, VA, for U.S.

MEMORANDUM OPINION

SPENCER, District Judge.

THIS MATTER is before the Court on two motions. The first is a motion by defendant Marcellus Reid to suppress testimony of certain government witnesses under the reasoning of United States v. Singleton, 144 F.3d 1343 (10th Cir.1998), reh'g en banc granted, opinion vacated, No. 97-3178 (10th Cir. July 10, 1998). The second is a motion by the defendant to suppress certain evidence. For the reasons stated below, the Court DENIES both motions.

I. Motion to Suppress Testimony of Government Witnesses Pursuant to Singleton

Reid moves to suppress the testimony of all witnesses that have received or been promised anything of value for their testimony. His motion is based on the three-judge panel decision in United States v. Singleton, where the Court held that any promise made by the government to a witness in exchange for truthful testimony violates the criminal gratuity statute, 18 U.S.C. § 201(c)(2). At the outset, the Court wants to make it clear that the holding in the Singleton case is not the law in the Fourth Circuit. In addition, the Court notes that the Singleton decision has been vacated by the Tenth Circuit; consequently, there is no place in this country where it is legally binding. However, as the defendant has presented to this Court the issue raised in Singleton, that is, whether a U.S. Attorney's promises in exchange for truthful testimony violates the law, the following analysis is necessary.

The criminal gratuity statute at issue in Singleton and here states, in relevant part:

Whoever ... directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony ... as a witness upon a trial, hearing, or other proceeding ... shall be fined under this title or imprisoned for not more than two years, or both.

18 U.S.C. § 201(c)(2). According to the three-judge panel of the Tenth Circuit, the U.S. Attorney's promises in its case¹ constituted "things of value" that were "for or because of' the coconspirator's testimony in the Singleton trial. To reach its decision, the Tenth Circuit first looked at the "statutory plain language" of Section 201(c)(2), which the Court suggested was broad. 144 F.3d at 1344-46, 1998 WL 350507 at *3-4. The Court broadly construed "whoever" and held that the class of persons that can violate the statute includes U.S. Attorneys. However, this Court disagrees.

Section 201(c)(2) Does Not Apply to the U.S. Attorney

In Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937), the United States Supreme Court described a canon of statutory construction where 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, 58 S.Ct. 275. The Supreme Court stated that the canon has been applied in two kinds of situations. "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, 58 S.Ct. 275. At the same time that the Court described this first exception, the Court noted that "[t]he rule of exclusion of the sovereign is less stringently applied where the operation of the law is upon the agents or servants of the government rather than on the sovereign itself." Id. at 383, 58 S.Ct. 275 (emphasis added). In reviewing this statement by the Supreme Court, this Court notes that the words "less stringently applied" were used, rather than a declaration that the exception never applies to government agents.

The second category described by the Nardone Court is "where a reading which would include such [government] officers would work obvious absurdity." Id. at 384, 58 S.Ct. 275. In the instant case, the Government argues that applying Section 201 to standard plea agreements in this District (and all others) would "work obvious absurdity" and would run contrary to the criminal justice system which has been in place for decades. This Court finds the Government's arguments persuasive.

There are several legal examples as to how prosecutors have historically been supported by the federal courts in recommending leniency in exchange for testimony. In the Whiskey Cases, 99 U.S. 594, 25 L.Ed. 399 (1878), the Supreme Court recognized the practice:

Prosecutors in such a case should explain to the accomplice that he is not obliged to criminate himself, and inform him just what he may reasonable expect in case he acts in good faith, and testifies fully and fairly as to his own acts in the case, and those of his associates. When he fulfills those conditions he is equitably entitled to a pardon, and the prosecutor, and the court if need be, when fully informed of the facts, will join in such a recommendation.

Id. at 604. Since the Supreme Court's recognition in the Whiskey Cases, there have been numerous implicit and explicit recognitions of the legitimacy of inducing witnesses to testify by offering them promises of leniency. An example not adequately dealt with in Singleton is Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), where a U.S. Attorney failed to disclose to the defense the government's promise to a government witness that he would not be prosecuted if he cooperated. The Supreme Court held that nondisclosure of the promise amounted to a violation of due process. While the Supreme Court did not directly address the issue of whether the promise itself was problematic, the Court did rule that the government must disclose a promise of leniency made to a key witness in exchange for that witness' testimony. The Court's holding implicitly suggests that the promises themselves are permissible.²

In any event, there is an endless number of federal cases among the Circuits in favor of plea agreements. In United States v. Dailey, 759 F.2d 192 (1st Cir.1985), the Court held that the risk of perjury created by the defendant's alleged accomplices' plea agreements was not so great that defendant's due process rights were violated by the admission of the accomplices' testimony at trial. In the words of the Court, "[l]ong ago the courts rejected the notion that the testimony of co-defendants and other interested witnesses was so likely to be unreliable that it should be excluded." Id. at 196. In United States v. Barrett, 505 F.2d 1091 (7th Cir. 1974), the Seventh Circuit held that the government has the authority to allow civil immunity in return for testimony and stated that "[i]f the government can excuse criminal or civil liability in settling a criminal case, surely it can use that power of compromise to obtain a guilty plea or to procure testimony in other proceedings. Both are legitimate objectives of plea agreements." Id. at 1102. See also United States v. Kimble, 719 F.2d 1253 (5th Cir.1983); Lyda v. United States, 321 F.2d 788, 794-95 (9th Cir.1963). If the concern is that plea agreements will taint witness testimony, as it seems to be in Singleton, this Court emphasizes that disclosure of the plea agreements to defense before trial, cross-examination of cooperating witnesses, and jury instructions all provide opportunity to ferret out false testimony that an interested witness might give because of a government promise. Also, most defendants who make plea agreements with the Government are made to understand that the agreements are not based on the conviction of anyone, rather they are based on truthful testimony.

With that said, the Court must agree with the Government that the second exception described in Nardone applies here. There is a long history of plea agreements of the type in Singleton being accepted by federal courts. As the Fifth Circuit has stated, "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." United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987), cert. denied, 484 U.S. 1026, 108 S.Ct. 749, 98 L.Ed.2d 762 (1988). In many cases, as stated by the First Circuit in Dailey, the most knowledgeable witnesses available to testify about criminal activity are indicted coconspirators. See Dailey, 759 F.2d at 196. In fact, this Court believes that there are situations where those individuals may be the only credible witnesses of criminal activity and, without their testimony, the government would not be able to obtain convictions. It is naive to assume that most coconspirators would be so altruistic as to abandon their own self-interest and testify for the very government that seeks a stiff sentence against them without a bargain being made. To prohibit prosecutors from making promises in exchange for testimony works an "absurd" result where crimes go unresolved because of worries about testimony that may be questionable, even though the system already has built-in safeguards concerning questionable testimony by interested witnesses.³

In short, the right on the part of the prosecutor to make promises of leniency in exchange for testimony is as old as the institution of the criminal trial. This Court holds that a reading of Section 201(c)(2) that includes government attorneys would work "obvious absurdity" and, thus, this case falls within the canon expressed in Nardone that "the general words of a statute do not include the government or affect its rights unless the construction be clear and...