(Concurring Opinions)

HENRY, Circuit Judge, concurring.

This difficult case has spawned three excellent opinions. Judge Lucero’s concurrence resolves the case most convincingly for me, and I join that concurrence.

I write briefly to add that this problem may arise again. As the dissent notes, Congress has recently passed legislation, sponsored by Rep. Joe McDade and endorsed by the American Bar Association and the American Corporate Counsel Association, that repeals the Thornburgh memorandum. It directs that government attorneys – most of whom are licensed in the state in which they practice – be subject to state ethical rules. Thus, the dissent’s suggestions as to other tactics that might be employed may deserve close scrutiny.

Further, I note that although I believe the majority is correct on the tradition argument, I do not see the statute as construed by the dissent as patently absurd. I do see that its operation as construed by the dissent would work what might be called a legal absurdity, in that Congress would have criminalized the general practice. I simply do not believe Congressional intent could have been to criminalize the widespread and common practice of government lawyers.

LUCERO, J., with whom Judge HENRY joins, concurring.

I concur in the judgment that the United States and its agent, an Assistant United States Attorney, did not violate 18 U.S.C. § 201(c)(2) by offering in a plea agreement to exchange leniency for the testimony of Singleton’s co-conspirator. See I R. doc. 109, at 1-4. But I write separately to state my disagreement with the majority’s holding that the word "whoever" in 18 U.S.C. § 201(c)(2), as it is used to define the class of persons who can violate the statute, cannot include the government or its agents. The majority’s interpretation would permit the conclusion that consistent with the provisions of § 201, a United States Attorney may pay a prosecution witness for false testimony.

I cannot join the dissent, however, because § 201(c)(2) operates in conjunction with other statutes to allow the government, upon proper disclosure and/or with court approval, to trade certain items of value for testimony. These statutes include 18 U.S.C. § 3553(e) and 28 U.S.C. § 994(n), passed as part of the Sentencing Reform Act of 1984, which allow courts, acting pursuant to the Sentencing Guidelines and upon motion of the government, to reduce sentences for individuals who provide "substantial assistance in the investigation or prosecution of another"; the federal immunity statutes, 18 U.S.C. §§ 6001-6005, passed as part of the Organized Crime Control Act of 1970, which require courts, upon the request of the government, to confer immunity upon witnesses for their testimony in aid of the prosecution; and the Witness Relocation and Protection Act, 18 U.S.C. §§ 3521-3528, passed as part of the Comprehensive Crime Control Act of 1974, which allows the government to bestow various benefits for the protection of cooperating witnesses. Because these specific statutes are in conflict with the general prohibitions of § 201(c)(2), the specific statutes control, and permit the prosecution’s actions in this case. Whereas the majority considers these statutes to be unnecessary to its result, see Maj. Op. at 11, I find them dispositive.


It is undisputed that the Assistant United States Attorney’s offer of leniency to Mr. Douglas was for his testimony. See Maj. Op. at 2; Singleton, 144 F.3d at 1344. Thus, the only issue is whether 18 U.S.C. § 201(c)(2), the anti-gratuity provision of the federal bribery statute, prohibits the prosecutor’s conduct.


The majority holds that "whoever" as used in § 201(c)(2) does not include the government. That result, I believe, cannot be reconciled with Nardone v. United States, 302 U.S. 379 (1937), which holds that government agents are liable under the wiretapping provisions of the Federal Communications Act. Like the statute at issue here, that under review in Nardone uses a term of general applicability—"no person"—to encompass the class of persons subject to the law. See Nardone, 302 U.S. at 380-82. The majority’s conclusion that "whoever" cannot refer to the government because it "connotes a being" and not an entity, see Maj. Op. at 7 (citing dictionary definition of "whoever"), must therefore be incorrect because the statutory language that Nardone holds to include the government also connotes a being and not an entity.

Nardone identifies two classes of statutes wherein terms of general applicability do not apply to the government. "The first is where an act, if not so limited, would deprive the sovereign of a recognized or established prerogative title or interest." Nardone, 302 U.S. at 383. The second is where an interpretation of the statute to include government officers "would work obvious absurdity." Id. at 384. The majority holds that the government cannot be included within "whoever" in § 201(c)(2) because the statute falls within both these classes. I respectfully disagree.

With regard to the first class, the majority identifies "a longstanding practice sanctioning the testimony of accomplices against their confederates in exchange for leniency" as creating a vested prerogative in the government. Maj. Op. at 9. Nardone, however, limits the class of statutes under which language of general applicability excludes the government. "The 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." Nardone, 302 U.S. at 383. The majority would transform virtually all federal "officers and agents" relating to law enforcement and prosecution into alter egos of the government, thereby rendering Nardone’s limitation on the prerogative of the sovereign mere surplusage. In effect, the majority would overrule Nardone’s holding that federal officers are liable under the wiretapping provisions of the Federal Communications Act. For purposes of Nardone, United States Attorneys must be regarded as agents of the government, not as its alter egos.

With respect to the second class recognized by Nardone, the majority’s holding itself works an obvious absurdity by implying that a federal prosecutor who bribes a witness to supply false testimony is not subject to the criminal prohibitions of § 201. Even the government concedes that a prosecutor who corruptly bribes a witness to provide testimony is liable under 18 U.S.C. § 201(b)(3). See Appellee’s Supp. Br. at 15. In short, neither of Nardone’s two exceptions supports the majority’s result.


The government asserts that because the Dictionary Act defines "whoever" in a manner that does not expressly include the federal government, see 1 U.S.C. § 1, Congress could not have intended its use of "whoever" in § 201(c)(2) to include the government and its agents. Part of the purpose of § 201, however, is to criminalize certain behavior of government officials. See 18 U.S.C. § 201(b)(2). In addition, as noted above, the government itself states that a prosecutor who corruptly bribes a witness to provide testimony is liable under 18 U.S.C. § 201(b)(3), which, like § 201(c)(2), merely uses the word "whoever" to identify potentially liable parties. If "whoever" can refer to government agents in one part of the statute, then it surely can refer to government agents in § 201(c)(2).

Furthermore, the structure of 18 U.S.C. § 201 indicates that "whoever" is inclusive of public officials. Sections 201(b) and (c) plainly state that "whoever" performs certain acts shall be punished under Title 18. For certain offenses, however, §§ 201(b)(2) and (c)(1)(B) limit their scope to "whoever . . . being a public official[, former public official,] or person selected to be a public official." 18 U.S.C. §§ 201(b)(2) and (c)(1)(B). The use of the limiting construction "being a public official" necessarily implies the inclusion of such officials within the catch-all term "whoever." Logically, a person falling within the scope of the construction "whoever . . . being" necessarily falls within the larger scope of "whoever"—thereby indicating that "whoever" cannot be construed to exclude those public officials. More generally, of course, §§ 201(b)(2) and (c)(1)(B) demonstrate Congress’s ability to limit certain offenses under § 201 to certain classes of individuals when it wishes to do so. The choice not to so limit § 201(c)(2) carries a clear implication that is wrongly ignored by the majority.


"It is an elementary tenet of statutory construction that ‘[w]here there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one.’" Guidry v. Sheet Metal Workers Nat’l Pension Fund, 493 U.S. 365, 375 (1990) (quoting Morton v. Mancari, 417 U.S. 535, 550-51 (1974)). Rather, a specific statute controls over the general. See Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961); see also 2B Norman J. Singer, Sutherland on Statutes and Statutory Construction § 51.05, at 174 (5th ed. 1992) ("Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized; but if there is any conflict, the latter will prevail."). This is true regardless of the priority of the individual statutes’ enactment. See Bulova Watch, 365 U.S. at 758.


Congress has developed an extensive and detailed statutory framework authorizing sentence reductions and recommendations, immunity, and other incentives for cooperating witnesses. Federal immunity statutes, for example, which authorize prosecutors to request immunity for cooperating witnesses, see 18 U.S.C. §§ 6001-6005, "reflect[] the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime." Kastigar v. United States, 406 U.S. 441, 446 (1972). The Supreme Court has characterized the immunity statutes as "essential to the effective enforcement of various criminal statutes," id. at 447, and "so familiar that they have become part of our ‘constitutional fabric,’" United States v. Mandujano, 425 U.S. 564, 575-76 (1976) (plurality op.) (quoting Lefkowitz v. Turley, 414 U.S. 70, 81-82 (1973)).

Although, as the Singleton panel noted, the government moves the court to grant immunity rather than bestowing immunity directly upon a cooperating witness, see Singleton, 144 F.3d at 1348, the government’s role in the process is more important than that of the court. See United States v. Doe, 465 U.S. 605, 616 (1984) (noting that the immunity statutes grant government authorities "exclusive authority to grant immunities" and that the courts play "only a minor role in the immunizing process"); Pillsbury Co. v. Conboy, 459 U.S. 248, 254 n.11 ("‘The court’s role in granting the [immunity] order is merely to find the facts on which the order is predicated.’" (quoting H.R. Rep. No. 91-1549, at 43 (1970), reprinted in 1970 U.S.C.C.A.N. 4007, 4018)). Indeed, the statutory language itself requires the court, "upon the request of the United States attorney," to "issue . . . an order requiring [a witness] to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination." 18 U.S.C. § 6003(a).

When granted statutory immunity, the potential witness is given something of value by the government in that his immunized testimony cannot be used to prosecute him. By the same token, the government plainly gains something of value from immunizing the testimony—the testimony itself. See Mandujano, 425 U.S. at 575 (characterizing immunity as "the quid pro quo for securing an answer from the witness"). The immunity statutes give the government leverage with which to obtain testimony from recalcitrant witnesses, and the power to grant immunity serves as one of the bargaining tools in the prosecutorial process. See id. at 576 (characterizing the grant of immunity as the government’s "ultimate tool for securing testimony that would otherwise be protected"); see also Jeffrey Standen, Plea Bargaining in the Shadow of the Guidelines, 81 Cal. L. Rev. 1471, 1492 (1993) (placing negotiations over immunity grants within the general framework of the plea bargaining process).

The Witness Relocation and Protection Act expressly authorizes the Attorney General to provide for the relocation and protection of certain federal witnesses. See 18 U.S.C. § 3521(a). It allows the government to provide numerous things of value, see 18 U.S.C. § 3521(b)(1)(B) & (D) (authorizing the government to provide housing and pay the basic living expenses for protected witnesses), in exchange for the agreement of the witness "to testify in and provide information to all appropriate law enforcement officials concerning all appropriate proceedings," as set forth in a "memorandum of understanding." 18 U.S.C. § 3521(d)(1) & (d)(1)(A).

Dispositive in this case is the Sentencing Reform Act of 1984, which, as amended, authorizes courts, upon motion of the government, to reduce sentences for individuals who provide "substantial assistance in the investigation or prosecution of another." See 18 U.S.C. § 3553(e) (authorizing reductions below statutory minimum sentence); 28 U.S.C. § 994(n) (requiring the Sentencing Commission to assure that Sentencing Guidelines "reflect the general appropriateness" of such reductions); see also Fed. R. Crim. P. 35(b) (authorizing post-sentencing reductions "in accordance with the guidelines and policy statements issued by the Sentencing Commission under 28 U.S.C. § 994"). There can be little doubt that Congress intended to include the provision of cooperative testimony under the rubric of "substantial assistance." Both 18 U.S.C. § 3553(e) and 28 U.S.C. § 994(n) define such assistance in terms of "the investigation or prosecution of another person who has committed an offense." 18 U.S.C. § 3553(3) & 28 U.S.C. § 994(n) (emphasis added). Although there are some forms of assistance in prosecution that are neither testimonial nor duplicative of investigatory assistance, it stretches credulity to suppose that Congress intended to exclude cooperative testimony from "substantial assistance" as used in these statutes. See Bridger Coal Co./Pac. Minerals v. Dir., Office of Workers’ Compensation Programs, 927 F.2d 1150, 1153 (10th Cir. 1991) (citations omitted) ("We will not construe a statute in a way that renders words or phrases meaningless, redundant, or superfluous.").

By allowing prosecutors to reward testimony with sentencing benefits, the statutes must also be read to authorize prosecutors to inform a defendant and potential witness of the possibility of such reward. Barring a prosecutor from discussing leniency prior to testimony would seriously inhibit the intended effect of these statutes by reducing the pool of defendants willing to testify against their co-conspirators to those informed by their counsel of the potential benefits of cooperation. Furthermore, a bar to pre-testimony negotiation would contradict the intent of Fed. R. Crim. P. 11. "Where plea discussions and agreements are viewed as proper, it is generally agreed that it is preferable that the fact of the plea agreement be disclosed in open court and its propriety be reviewed by the trial judge." Fed. R. Crim. P. 11(e) advisory committee’s note to 1974 Amendment. This openness was intended to recognize plea bargaining as "an ineradicable fact," and prevent it from being "drive[n] underground," where it would otherwise "occur[] in an informal and largely invisible manner" without "effective judicial review of the propriety of the agreements, thus increasing the risk of real or apparent unfairness." Id. Consequently, construing §§ 3553(e) and 994(n) not to cover pre-testimony negotiation would contradict the very purpose of Rule 11 by eliminating its "appropriate and adequate safeguards" embodied therein. Id. Defendants would have little incentive to provide cooperative testimony, thereby frustrating Rule 11’s purpose in authorizing plea bargaining as "an essential component of the administration of justice." Id. (quoting Santobello v. New York, 404 U.S. 257, 260 (1971)).

Pursuant to these grants of statutory authority, the Sentencing Commission has issued a policy statement entitled "Substantial Assistance to Authorities," see U.S.S.G. § 5K1.1, which allows a downward departure in consideration of "the truthfulness, completeness, and reliability of any information or testimony provided by the defendant." U.S.S.G. § 5K1.1(a)(2). Courts have upheld the exchange of testimony for leniency under this authority. See, e.g., United States v. Courtois, 131 F.3d 937, 938-39 (10th Cir. 1997) (holding that prosecution may bargain away its discretion not to file a § 5K1.1 motion) (citing Wade v. United States, 504 U.S. 181, 185 (1992)).

In totality, these various statutes create both a substantive and procedural framework for bargaining between government agents and potential witnesses. They limit the "something of value" that the government may offer, and detail the roles of both the prosecution and the courts in determining sentences, providing immunity, and granting other forms of assistance. The result is a coherent, narrowly defined set of laws that operate in the same field as the more general prohibitions of § 201(c)(2). Under long-established principles of statutory construction, where specific statutes overlap with a general statute, the latter must give way, insofar as it would prohibit that which the narrow statutes would allow.7 It is for this reason that I concur with the majority’s result.

7. Where § 201(c)(2) does give way, the requirements of constitutional due process and confrontation, as well as the rules of criminal procedure, will continue to protect the accused. Thus, prosecutors must disclose to the defendant "evidence of any understanding or agreement . . . [that] would be relevant to [a witness’s] credibility." Giglio v. United States, 405 U.S. 150, 154-55 (1972); see also Davis v. Alaska, 415 U.S. 308, 316-17 (1974) ("[T]he exposure of a witness’s motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination."). Additionally, the court plays an important role in reviewing plea agreements. See Fed. R. Crim. P. 11(c) (requiring court to advise defendant with respect to plea agreement); Fed. R. Crim. P. 11(d) (requiring court to insure that plea is voluntary); Fed. R. Crim. P. 11(e) (permitting court to reject plea agreement).


This analysis has several advantages over that of the majority. It provides both a roadmap for the bargaining process and a clearly articulated criminal statute with which to punish straying prosecutors. The majority’s reading of § 201(c)(2), on the other hand, creates a conceptually messy legal regime for handling the case of the errant United States Attorney "who offers something other than a concession normally granted by the government," Maj. Op. at 11, such as bribing a witness to provide false testimony.

The majority reasons that this prosecutor can be held liable because he is acting ultra vires, and is therefore "no longer the alter ego of the sovereign and is divested of the protective mantle of the government." Maj. Op. at 11-12. The majority’s holding, premised on the government’s sovereign authority and the common law of exchanges of testimony for leniency, see Maj. Op. at 6, 9-10, is likely to create difficulties for authorities who, in seeking to sanction errant prosecutors, will be forced to study the arcania of the common law to discern the scope of protected prosecutorial activity. On the other hand, the statutory construction proposed here protects the general prohibition of § 201(c)(2), but provides specific exemptions that the government may follow. Prosecutors may offer only those incentives that Congress has approved, and may bargain and execute agreements only within the narrow, specific procedures that Congress and the courts have articulated. If a United States Attorney does not act within the provisions of those specific statutes that conflict with § 201, then § 201—including subsection (c)(2)—applies. Conversely, where the actions of the prosecutor fall within such provisions, as in this case, then § 201(c)(2) does not apply.

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