(Dissenting Opinion)

KELLY, Circuit Judge, with whom SEYMOUR, Chief Judge, and EBEL, Circuit Judge, join, dissenting.

The court holds that 18 U.S.C. § 201(c)(2) does not apply to the government because government prosecutors are inseparable from the sovereign, and that its application would deprive the sovereign of its power to grant leniency in exchange for testimony and would conflict with various statutory provisions. Because courts must apply unambiguous statutes as they are written and § 201(c) does not admit of an exception for the government or its prosecutors, I respectfully dissent.

As an initial observation, since the panel issued its opinion in this case, prosecutors from coast to coast have attempted to portray it as the death knell for the criminal justice system as we know it. These are the same grave forecasts made by prosecutors after the Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966), and the advent of the exclusionary rule. But experience has proven that the government, just like the private citizens it regulates and prosecutes, can live within the rules. No one would suggest that the criminal justice system has ceased to function because the Court or Congress has effectuated constitutional or statutory guarantees designed to promote a more reliable outcome in criminal proceedings.

In holding that § 201(c)(2) simply does not apply to the government, the court does not hold that leniency in exchange for testimony does not constitute "anything of value." To be sure, the investigation and prosecution of criminal wrongdoing is an important societal function. Yet, largely missing from the debate since the panel opinion was issued is any concern for the other deeply held values that § 201(c) was intended to protect and which, I believe, the panel opinion honored by applying § 201(c) as Congress wrote it. Those concerns center on maintaining the integrity, fairness, and credibility of our system of criminal justice. Criminal judgments are accepted by society at large, and even by individual defendants, only because our system of justice is painstakingly fair. An additional core value honored by the panel opinion is the preservation of the separation of powers carefully articulated in the Constitution between the legislative and judicial branches, and the proper role of the judiciary as the law-interpreting, rather than lawmaking, branch of the federal government.

Contrary to the concerns expressed by some commentators and courts, see United States v. Ware, 161 F.3d 414, 1998 WL 830587 (6th Cir. Dec. 3, 1998), a straight-forward interpretation of § 201(c), which encompasses a prohibition against the government buying witness testimony with leniency, actually aids the search for truth. In theory, the leniency is only in exchange for "truthful" testimony. See United States v. Haese, No. 97-10307, 1998 WL 842185, at *8 (5th Cir. Dec. 7, 1998). But as the Supreme Court has recognized: "Common sense would suggest that [an accused accomplice] often has a greater interest in lying in favor of the prosecution rather than against it, especially if he is still awaiting his own trial or sentencing. To think that criminals will lie to save their fellows but not to obtain favors from the prosecution for themselves is indeed to clothe the criminal class with more nobility than one might expect to find in the public at large." Washington v. Texas, 388 U.S. 14, 22-23 (1967); see also Yvette A. Beeman, Note, Accomplice Testimony Under Contingent Plea Agreements, 72 Cornell L. Rev. 800, 802 (1987) ("Accomplice plea agreements tend to produce unreliable testimony because they create an incentive for the accomplice to shift blame to the defendant or other co-conspirators. Further, an accomplice may wish to please the prosecutor to ensure lenient prosecution in his own case."). To be sure, there are devices that partially ameliorate the problem. The government is required to disclose exculpatory information, including impeachment information, to a defendant. Testifying accomplices may be cross-examined. Their credibility may be impeached, and the jury is instructed that it may regard such testimony with caution. However, all of these devices have limitations. In the real world of trial and uncertain proof, and in view of § 201(c), a witness’s demeanor and actual testimony are simply too important to hinge upon promises of leniency. Although the court notes that a prosecutor who procures false testimony could be prosecuted for subornation of perjury, 18 U.S.C. § 1622 [[which], like § 201(c)(2), . . . applies to "[w]hoever," and makes no exception for federal prosecutors], such a remedy offers little practical advantage to a defendant facing trial. By barring an exchange of leniency for testimony, Congress in § 201(c) has sought to eliminate, at the source, the most obvious incentive for false testimony.

On the other side of the ledger is my concern for the institutional role of Article III courts. Much of this case has been about policy. I accept the government’s position that accomplices can provide important information and interpreting § 201(c) to include prosecutors might require some changes to elicit testimony of some witnesses. While it would be up to the Department of Justice to devise ways of compliance, the government is not precluded from offering leniency in exchange for information and assistance short of actual testimony at trial. Likewise, the government could prosecute accomplices first, then compel their testimony by subpoena against co-conspirators. Such a practice protects every legitimate prosecutorial concern expressed in this case by the government and refutes its contention that the criminal justice system would be crippled if it could not offer leniency to a defendant in exchange for testimony. Finally, the government could request that the district court order an accomplice to testify under a grant of immunity. Surely the Department has the ability and resources to come up with effective and lawful means for procuring necessary accomplice testimony. However, I also accept the defense attorneys’ position that government leniency in exchange for testimony can create a powerful incentive to lie and derail the truth-seeking purpose of the criminal justice system. The very nature and complexity of this policy debate reinforces my initial belief that this is an argument better left to Congress. This court must perform its constitutional duties and no more. Ours is not to explore the farthest meanings that the term "whoever" can bear so as to effectuate the policy we think best. Our duty is to interpret the plain meaning of the statute. I continue to believe that meaning is clear: § 201(c), as written, applies to prosecutors and criminal defendants alike. If the balance struck by § 201 is to be reweighed, that reweighing should be done by the policymaking branch of government – the Congress, and not the courts. In that regard, it bears repeating that the panel’s original opinion was purely a matter of statutory construction, not constitutional analysis, and it remains completely open for Congress to reweigh the conflicting values sought to be addressed in § 201. Although the remedy of exclusion of evidence based upon a statutory violation arguably constitutes a non-constitutional rule of criminal procedure, see Amicus NACDL Br. at 15-19, such a rule also would not appear to come within Teague or its exceptions to finality. Although the concerns of comity are not present when a federal court reviews federal convictions, the concern with finality apparent in Teague is no less important. Cf. 28 U.S.C. § 2255 (one-year limitation period applicable to § 2255 motions).

I. "Whoever" Means Whoever

The government argues that construing the word "whoever" to include the government is semantically anomalous because "whoever" connotes a being. As a textual and contextual matter, this is wrong. Textually, "whoever" clearly connotes more than a being and in fact denotes inanimate entities. The Dictionary Act, 1 U.S.C. § 1, definition of "whoever" includes, but is not limited to, corporations, companies, associations, firms, partnerships, societies, and joint stock companies—all inanimate entities. Contextually, the government concedes that "whoever" in § 201(b) applies to the government and it acknowledges that § 201(c) applies to the government if the government pays an informant money to testify. It makes absolutely no sense to give "whoever" one meaning in § 201(b) (and in § 201(c) when the inducement offered by the government is money) and to give the very same word a completely different meaning in § 201(c) when the inducement offered is leniency or some other promise to improve the informant’s position. After all, § 201(c) is a prophylactic rule to enforce § 201(b). "The interrelationship and close proximity of these provisions of the statute presents a classic case for application of the normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.’" Commissioner v. Lundy, 516 U.S. 235, 250 (1996) (internal quotations and citations omitted). Bought testimony is so fraught with the potential for perjury that Congress imposed a blanket prohibition that also applies to the government, just as hearsay testimony is so fraught with the potential for unreliability that the Federal Rules of Evidence generally prohibit its admission, whether offered by the government or private litigants.

The court suggests that the prosecutor and the sovereign are inseparable, and therefore the word "whoever" cannot apply because the United States cannot be prosecuted for providing leniency in exchange for testimony. First and foremost, "the law in this social order is not self-executing--the necessary instrument is the lawyer." Matter of Doe, 801 F. Supp. 478, 479 (D.N.M. 1992). To suggest that government attorneys performing prosecutorial functions are beyond scrutiny because of who they represent is anomalous because it merges attorney and client. No one would suggest that an accused and his attorney are one in the same for purposes of compliance with constitutional, statutory and ethical norms. As discussed below, constraints on government prosecutors are not unusual, notwithstanding that the sovereign is the client. Merely because the government cannot be prosecuted if its agents violate a rule does not mean that the rule may be disregarded; to the contrary, the rule may be enforced by means other than prosecution, here by exclusion of evidence. See Nardone v. United States, 302 U.S. 379, 384-85 (1937). The remedy of exclusion serves as a deterrent, protects a court’s integrity and allows a federal court the only means it has to enforce federal law.

Recently, Congress enacted a statute that explicitly subjects government attorneys, including federal prosecutors, to State laws and rules governing attorneys. See Omnibus Appropriations Act, Pub. L. No. 105-277, tit. VIII, § 801, 112 Stat. 2681, , (1998) (to be codified at 28 U.S.C. § 530B(a) & (c)) (eff. April 1999); 28 C.F.R. § 77.2(a) (1998). This statute strongly suggests that the Congress does not view government attorneys as one with the sovereign, beyond regulation. It is indeed odd that federal prosecutors will soon be expressly subject to State laws and rules regarding professional conduct, yet may continue to ignore the federal prohibition contained in § 201(c)(2).

Beyond the government’s sui generis definition of "whoever," the government’s argument rests upon the predicate that the government has the sovereign authority to prosecute criminal conduct, and applying § 201(c) to the government would impermissibly curtail that prerogative. However, applying § 201(c) to the government does not affect the core prerogative to prosecute or to withhold prosecution. The government erroneously conflates two distinct concepts: the vested sovereign prerogative of the government to prosecute and the obvious non-prerogative of how to prosecute. Prohibiting the government from granting witnesses leniency in exchange for testimony leaves the right to prosecute unfettered; the government can still prosecute anybody it wants and charge any way it wants. The anti-gratuity statute only limits how the government may prosecute its case and the government clearly has no vested sovereign prerogative to prove a case in any way it wishes. How the government proves its case is frequently restricted. Federal prosecutors must follow the Constitution, state codes of conduct, the rules of the individual courts, and the rules of evidence. See 28 U.S.C. § 530B(a); United States v. Mitcheltree, 940 F.2d 1329, 1341 & n.13 (10th Cir. 1991). Even the statute at issue in Nardone banned prosecutors from using evidence (including vital evidence) in a criminal trial that was obtained by a federal officer tapping telephone wires, notwithstanding that suppression was not a statutory remedy.

Thus, the anti-gratuity statute leaves unfettered the sovereign’s established prerogative to charge; it merely places a restriction on one method of gathering admissible evidence, here testimony, for or against an accused. A federal prosecutor is not above the law and is not free to prove a case by any process he or she wants. See Matter of Doe, 801 F. Supp. at 484-87; In re Howes, 940 P.2d 159, 164-65 (N.M. 1997). Once the government falls into the crucible of the trial, the government, like the defendant, must follow the generally applicable rules governing the process. The government’s argument that discontinuing the pervasive practice of buying testimony for leniency would jeopardize law enforcement is just another way of saying that the end justifies the means; not only is such a premise unsound policy, it also serves to demean the profession and all who strive to continue our system of justice as the fairest in the world.

II. Section 201(c)(2) in Relation to Other Statutes

Contrary to the government’s contentions, the defendant’s reading of § 201(c)(2) can be reconciled with 18 U.S.C. § 3553(e); 28 U.S.C. § 994(n); Fed. R. Crim. P. 35(b); and U.S.S.G. § 5K1.1(a)(2). It has been argued that this collection of enactments demonstrates Congress’ sanction of the practice of offering various forms of leniency to a defendant in exchange for the defendant’s agreement to testify in the government’s prosecution of other individuals. See United States v. Arana, 18 F. Supp.2d 715, 718-19 (E.D. Mich. 1998); United States v. Guillaume, 13 F. Supp.2d 1331, 1333-34 (S.D. Fla. 1998).

First, the statutory language we do have in § 201(c)(2) is a better guide to legislative intent than the silence about leniency in exchange for testimony contained in these other enactments. Second, it would be pure speculation to assume that Congress intended to endorse existing practice. As noted in the panel opinion, nowhere in 18 U.S.C. § 3553(e), 28 U.S.C. § 994(n), or Fed. R. Crim. P. 35(b) is "substantial assistance" defined to include testimony. The conspicuous absence of the word "testimony" from any of these sources would indicate that "substantial assistance" simply does not include testimony–a conclusion that avoids any conflict between these provisions and § 201(c)(2). In contrast, U.S.S.G. § 5K1.1(a)(2) does permit a court to consider "the truthfulness, completeness, and reliability of any information or testimony provided by the defendant" in deciding whether to depart from the guideline range in sentencing a defendant who has "provided substantial assistance" to the government. Even so, the fact that "substantial assistance" encompasses a defendant’s testimony still does not place § 5K1.1 in conflict with § 201(c)(2). Given the duty to reconcile seemingly conflicting statutes whenever possible, see Chemical Weapons Working Group, Inc. v. Department of the Army, 111 F.3d 1485, 1490 (10th Cir. 1997), it appears that § 5K1.1 creates a narrow exception to § 201(c)(2) by permitting a court to reward a defendant’s truthful testimony after it has been given. This narrow exception does not affect § 201(c)(2)’s prohibition against the prosecutor offering or promising leniency in advance to a defendant in exchange for his agreement to testify.

Likewise, the defendant’s reading of § 201(c)(2) can be harmonized with 18 U.S.C. §§ 6001-6005, the statutes dealing with federal immunity. Under these statutes, where an individual has refused to testify on the basis of his Fifth Amendment privilege against self-incrimination, and where, in the judgment of the federal prosecuting attorney, the testimony may be necessary to the public interest, the prosecutor may, with approval of the Attorney General, request the district court to order that individual to testify under a grant of immunity. These statutes allow the government to compel an unwilling witness to cooperate by precluding use of the Fifth Amendment privilege. This function is entirely distinct from promising or offering leniency ex ante in exchange for a defendant’s testimony, so the prohibition expressed in § 201(c)(2) does not conflict with the grant of immunity authorized by the §§ 6001-6005. Sections 6000-6005 provide a mechanism to take away from a defendant a right he otherwise would have – the right not to incriminate himself. Constitutionally, the only way that right can be taken from a defendant is by offering immunity in exchange. Thus, the quid pro quo there is an exchange of immunity for a person’s Fifth Amendment privilege. Once that exchange is made, the government can compel the witness to testify even against his wishes. That is very different, both conceptually and in terms of the risks presented, from purchasing voluntary testimony with leniency.

Finally, the defendant’s reading of § 201(c)(2) does not conflict with the Witness Relocation and Protection Act, 18 U.S.C. §§ 3521(b)(1), (d)(1)(A) (authorizing the Attorney General to provide housing, living expenses and protection for a witness upon the witness’ agreement to testify), or with Fed. R. Crim. P. 11(e)(1) (permitting plea agreements). Section 3521 is primarily concerned with the welfare of the witness, not with obtaining testimony. Rule 11(e) does not concern a defendant’s testimony—it simply permits a defendant to bypass trial; at most, it allows a defendant to be rewarded for admitting his guilt through the dismissal of additional charges or the recommendation of a more lenient sentence.

III. Tradition

The government relies on the common law practice of sanctioning the testimony of accomplices against their confederates in exchange for leniency. Apparently, this practice has not always been an unquestioned part of the common law. The seventeenth century English common law scholar and judge, Sir Matthew Hale, reasoned:

If a reward be promised to a person for giving his evidence before he gives it, this, if proved disables his testimony.

And so for my own part I have always thought, that if a person have a promise of a pardon if he give evidence against one of his own confederates, this disables his testimony, if it be proved upon him.

II Sir Matthew Hale, The History of Pleas of the Crown 280 (Sollom Emlyn ed. 1736) (footnote omitted). A narrow focus on this practice, however, ignores two other equally compelling traditions: the common law prohibition against paying fact witnesses, and the fundamental policy of ensuring a level playing field between the government and defendant in a criminal case.

Under the common law in most jurisdictions, "it is improper to pay an occurrence witness any fee for testifying." Model Rules of Professional Conduct Rule 3.4 cmt. [3]; cf. 2 Wigmore, Evidence in Trials at Common Law § 520 (Chadbourn rev. 1979) (noting that conviction of suppression of testimony by bribery, a crime of infamy, has been adjudged to render individual incompetent to testify). "Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like." Model Rules Rule 3.4 cmt. [1]. The prohibition against improperly influencing witnesses is also expressed in the law of contracts, which invalidates agreements to pay fact witnesses on grounds of public policy and for lack of consideration, see Hamilton v. General Motors Corp., 490 F.2d 223, 227-28 (7th Cir. 1973) (citations omitted); 7 Richard A. Lord, Williston on Contracts § 15:6 (4th ed. 1997); Restatement (Second) of Contracts § 73 cmt. b (1981); 6A Arthur Linton Corbin, Corbin on Contracts § 1430 (1962); Restatement of Contracts § 552(1) (1932), as well as in ethical rules which bar an attorney from offering a witness compensation or other illegal inducements to testify -- even for truthful testimony, see, e.g., Model Rules of Professional Conduct Rule 3.4(b) (1996); Model Code of Professional Responsibility DR 7-109(C) (1981).

Congress has expressed its desire that government attorneys comply with state and local federal court rules governing the practice of law. See 28 U.S.C. § 530B(a). These ethical norms not only protect the individual, but also our system of justice within a democracy. In the words of the late Judge Burciaga:

[W]e must understand ethical standards are not merely a guide for the lawyer’s conduct, but are an integral part of the administration of justice. Recognizing a Government lawyer’s role as a shepherd of justice, we must not forget that the authority of the Government lawyer does not arise from any right of the Government, but from power entrusted to the Government. When a Government lawyer, with enormous resources at his or her disposal, abuses this power and ignores ethical standards, he or she not only undermines the public trust, but inflicts damage beyond calculation to our system of justice. This alone compels the responsible and ethical exercise of power.

Matter of Doe, 801 F. Supp. at 479-80.

Constitutional law manifests another vital legal tradition which the government’s position undercuts—the policy of ensuring a level playing field between the government and defendant in a criminal case. The Supreme Court long ago recognized that impartiality in criminal cases requires that "[b]etween [the accused] and the state the scales are to be evenly held." Hayes v. Missouri, 120 U.S. 68, 70 (1887). Such a policy dates back to the Bill of Rights, which was "designed to level the playing field between the defendant and the state," Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. Chi. L. Rev. 361, 402 (1996), and indeed the policy has animated landmark constitutional decisions, see, e.g., Brady v. Maryland, 373 U.S. 83, 87 (1963) (stating that "[s]ociety wins not only when the guilty are convicted but when criminals trials are fair"); Miranda, 384 U.S. at 460 (stating that privilege against self-incrimination is required, inter alia, "[t]o maintain a fair state-individual balance") (citation and internal quotations omitted). Simply put, ours is an adversarial legal system, and implicit in this system, which pits the government against the defendant in a court of law, is the notion of fair play. See Barbara A. Babcock, Fair Play: Evidence Favorable to an Accused and Effective Assistance of Counsel, 34 Stan. L. Rev. 1133, 1138 (1982).

Remaining faithful to the important common law prohibition against paying fact witnesses and the fundamental policy of ensuring a level paying field between the government and defendant requires applying § 201(c)(2) to the government as its plain language suggests.

For the above reasons, I respectfully dissent. A more detailed explanation of my position has been set forth in the original panel opinion in this case. See United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998).

Majority Opinion Concurring Opinion Snitch Material