165 F.3d 1297 (10th Cir. 1999)(en banc)

PORFILIO, Circuit Judge.

Sonya Singleton was convicted of money laundering and conspiring to distribute cocaine. A panel of this court reversed that conviction on the ground the prosecuting attorney violated 18 U.S.C. § 201(c)(2) when he offered leniency to a co-defendant in exchange for truthful testimony. The panel held the testimony of the co-defendant should have been suppressed and that the failure to do so was not harmless error. United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). The en banc court vacated the panel decision, id. at 1361, and has now reheard the appeal. We now hold 18 U.S.C. § 201(c)(2) does not apply to the United States or an Assistant United States Attorney functioning within the official scope of the office.


The conspiracy forming the basis of Ms. Singleton’s conviction required her to send and receive drug proceeds by Western Union wires. Her co-conspirator Napoleon Douglas entered into a plea agreement in which he agreed to testify truthfully in return for the government’s promise not to prosecute him for related offenses, to advise the sentencing court of his cooperation, and to advise a state parole board of the "nature and extent" of his cooperation.

Before trial, Ms. Singleton moved to suppress the testimony of Mr. Douglas on the ground the government had violated 18 U.S.C. § 201(c)(2), the so-called "anti-gratuity statute," by promising him leniency in exchange for his testimony. The district court denied the motion and Mr. Douglas testified, acknowledging the benefits he would receive in exchange for his testimony and implicating Ms. Singleton in the charged offenses. Ms. Singleton asks us to review the court’s denial of her motion.


The question before us is whether section 201(c)(2) applies to the government in the prosecution of criminal offenses. Ms. Singleton argues the plain language of the statute permits no answer but that it does. As expected, the government counters such a reading is beyond the intent of Congress and clearly wrong. We review this issue of law de novo, FDIC v. Canfield, 967 F.2d 443, 445 (10th Cir. 1992) (en banc), and begin our analysis with the pertinent portions of the statute itself:

(c) Whoever-

(2) directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial . . . before any court . . . shall be fined under this title or imprisoned for not more than two years, or both.

18 U.S.C. § 201(c)(2) (1994).

Ms. Singleton takes the position that when Mr. Douglas testified after receiving the government’s promise of lenient treatment in exchange for his truthful testimony, he became a "paid ‘occurrence’ witness," and testimony from those of such ilk is contrary to the fundamental precepts of American justice because the payment of something of value would give the witness a strong motivation to lie. She reasons section 201(c)(2) was enacted to deter that result, and we need only apply plain meaning to the word "whoever" contained in the statute to conclude it must apply broadly and encompass the government and its representatives.

In contrast, the United States argues to allow section 201(c)(2) to sweep so broadly would not only be a radical departure from the ingrained legal culture of our criminal justice system but would also result in criminalizing historic practice and established law. The government maintains Congress did not intend to hinder the sovereign’s authority to prosecute violations against the United States in this fashion.

Viewing the statute on its face, it is apparent the dispute revolves about the word "whoever." Indeed, the significance of the remaining parts of the statute is not seriously controverted. However, like many words chosen by the legislative branch to convey its intent, this one word evokes more meaning than an innocent first reading of it would portend.

As correctly argued by Ms. Singleton, "whoever" is a broad term which by its ordinary definition would exclude no one. Indeed, if one were to take the word at face value, defendant’s argument becomes colorable, at least. However, the defendant’s approach, while facially logical, ignores a crucial point that must be considered in any attempt to apply the statute to the issues of this case. She argues the breadth of the word "‘whoever’ includes within its scope the assistant United States attorney who offered Douglas something of value in exchange for his testimony." To begin the parsing of the statute with this assumption, however, ignores a fundamental fact: the capacity in which the government’s lawyer appears in the courts.

The prosecutor, functioning within the scope of his or her office, is not simply a lawyer advocating the government’s perspective of the case. Indeed, the prosecutor’s function is far more significant. Only officers of the Department of Justice or the United States Attorney can represent the United States in the prosecution of a criminal case. 28 U.S.C. §§ 516, 547 (1994); United States v. Navarro, 959 F. Supp. 1273, 1277 (E.D. Cal. 1997), rev’d on other grounds, 1998 WL 809553 (9th Cir. Nov. 24, 1998). Indeed, a federal court cannot even assert jurisdiction over a criminal case unless it is filed and prosecuted by the United States Attorney or a properly appointed assistant. See United States v. Providence Journal Co., 485 U.S. 693, 699-708 (1988) (dismissing petition for certiorari for lack of jurisdiction where the petition was filed by a government lawyer acting without the authority to do so); United States v. Durham, 941 F.2d 886, 892 (9th Cir. 1991) (whether Special AUSA had been properly appointed went to jurisdiction of the district court). Therefore, the government’s sovereign authority to prosecute and conduct a prosecution is vested solely in the United States Attorney and his or her properly appointed assistants. Of course, it cannot be otherwise because the government of the United States is not capable of exercising its powers on its own; the government functions only through its officers and agents. We thus infer in criminal cases that an Assistant United States Attorney, acting within the scope of authority conferred upon that office, is the alter ego of the United States exercising its sovereign power of prosecution. Hence, in the attempt to apply section 201(c)(2), the United States and the Assistant United States Attorney cannot be separated. Indeed, the alter ego role of the prosecutor is not unusual, for in a similar case, the Sixth Circuit has noted:

When an assistant United States Attorney (AUSA) enters into a plea agreement with a defendant, that plea agreement is between the United States government and the defendant. When an AUSA uses at trial testimony obtained through a plea agreement or an agreement not to prosecute, he does so as the government. An AUSA who, pursuant to the provisions of the United States Sentencing Guidelines, moves for a downward departure under § 5K1.1, does so as the government.

United States v. Ware, 161 F.3d 414, 1998 WL 830587, *8 (6th Cir. Dec. 3, 1998).

Put into proper context, then, the defendant’s argument is: in a criminal prosecution, the word "whoever" in the statute includes within its scope the United States acting in its sovereign capacity. Extending that premise to its logical conclusion, the defendant implies Congress must have intended to subject the United States to the provisions of section 201(c)(2), and, consequently, like any other violator, to criminal prosecution. Reduced to this logical conclusion, the basic argument of the defendant is patently absurd.

There is even a more fundamental reason for arriving at the same conclusion, however. Although Congress may, by legislative act, add to or redefine the meaning of any word, it did not do so in the passage of section 201(c)(2). Therefore, we must presume it intended to employ the common meaning of the word. The word "whoever" connotes a being. See Webster’s Third New International Dictionary 2611 (1993) (defining "whoever" as "whatever person: any person" (emphasis added)). The United States is an inanimate entity, not a being. The word "whatever" is used commonly to refer to an inanimate object. See id. at 2600 (defining "whatever" as "anything that: everything that" (emphasis added)). Therefore, construing "whoever" to include the government is semantically anomalous. Looking beyond definitions, though, there are rules of statutory construction that will lead to the same conclusion.

Statutes of general purport do not apply to the United States unless Congress makes the application clear and indisputable. In The Dollar Savings Bank v. United States, 86 U.S. 227 (1873), the Court instructed:

It is a familiar principle that the King is not bound by any act of Parliament unless he be named therein by special and particular words. The most general words that can be devised (for example, any person or persons, bodies politic or corporate) affect not him in the least, if they may tend to restrain or diminish any of his rights and interests. . . . The rule thus settled respecting the British Crown is equally applicable to this government, and it has been applied frequently in the different States, and practically in the Federal courts. It may be considered as settled that so much of the royal prerogatives as belonged to the King in his capacity of parens patriae, or universal trustee, enters as much into our political state as it does into the principles of the British constitution.

Id. at 239 (footnote omitted); see also 8 Matthew Bacon, A New Abridgment of the Law 92 (1869) ("[W]here a statute is general, and thereby (a) any prerogative, right, title, or interest is divested or taken from the king, in such case the king shall not be bound, (b) unless the statute is made by express words to extend to him."); Henry Campbell Black, The Construction and Interpretation of the Laws 94-97 (2d ed. 1911) (same). The Court revisited the concept in Nardone v. United States, 302 U.S. 379, 383-84 (1937), when it held this canon of construction generally applies when failure to limit the application of a statute would "deprive the sovereign of a recognized or established prerogative title or interest" or "where a reading which would include [the government] would work obvious absurdity."

We have already established the absurdity in trying to apply section 201(c)(2) to the sovereign’s prosecutorial powers, and a number of courts have agreed for an abundance of reasons we also find persuasive. See, e.g., United States v. Haese, ___ F.3d ___, 1998 WL 842185, at *8 (5th Cir. Dec. 7, 1998); Ware, 161 F.3d 414, 1998 WL 830587, at *9; United States v. White, ___ F. Supp. 2d ___, 1998 WL 758830, at *2-3 (E.D.N.C. 1998); United States v. Hammer, ___ F. Supp. 2d ___, 1998 WL 725211, at *17 (M.D. Pa. 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, 717-19 (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, 1332-34 (S.D. Fla. 1998); United States v. Eisenhardt, 10 F. Supp. 2d 521, 521-22 (D. Md. 1998); United States v. Barbaro, 1998 WL 556152, at *3 (S.D.N.Y. Sept. 1, 1998). But see United States v. Revis, ___ F. Supp. 2d ___, 1998 WL 713229 (N.D. Okla. 1998); United States v. Fraguela, 1998 WL 560352 (E.D. La. Aug. 27, 1998).

The next question, then, is whether applying the statute to the government would deprive the sovereign of a recognized or established prerogative, title, or interest. The answer to that question is, inescapably yes.

From the common law, we have drawn a longstanding practice sanctioning the testimony of accomplices against their confederates in exchange for leniency. See Hoffa v. United States, 385 U.S. 293, 310-12 (1966); Lisenba v. California, 314 U.S. 219, 227 (1941); Benson v. United States, 146 U.S. 325, 333-37 (1892); The Whiskey Cases, 99 U.S. 594, 599-600 (1878). Indeed,

[n]o 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); United States v. Juncal, 1998 WL 525800, at *1 (S.D.N.Y. Aug. 20, 1998) ("The concept of affording cooperating accomplices with leniency dates back to the common law in England and has been recognized and approved by the United States Congress, the United States Courts and the United States Sentencing Commission.").

This ingrained practice of granting lenience in exchange for testimony has created a vested sovereign prerogative in the government. It follows that if the practice can be traced to the common law, it has acquired stature akin to the special privilege of kings. However, in an American criminal prosecution, the granting of lenience is an authority that can only be exercised by the United States through its prosecutor; therefore, any reading of section 201(c)(2) that would restrict the exercise of this power is surely a diminution of sovereignty not countenanced in our jurisprudence.

Moreover, in light of the longstanding practice of leniency for testimony, we must presume if Congress had intended that section 201(c)(2) overturn this ingrained aspect of American legal culture, it would have done so in clear, unmistakable, and unarguable language.

Congress is understood to legislate against a background of common-law adjudicatory principles. Thus, where a common-law principle is well established . . . the courts may take it as a given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident.

Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991) (citations and quotation marks omitted); see also Green v. Bock Laundry Machine Co., 490 U.S. 504, 521-22 (1989). It further follows, therefore, the absence of such language makes patent section 201(c)(2) was not intended to apply to the United States or its attorneys.

The government also points out a number of statutes and rules with which defendant’s reading of section 201(c)(2) would conflict. Other courts have done so as well. See, e.g., Arana, 18 F. Supp. 2d at 718-19 (conflicts with 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1(a)(2)); Dunlap, 17 F. Supp. 2d at 1184-86 (conflicts with Fed. R. Crim. P. 11(e)); Guillaume, 13 F. Supp. 2d at 1334 (conflicts with 18 U.S.C. §§ 6001-05). We simply believe the general principles we have set forth so completely undercut defendant’s reading that further exposition would be redundant.


Our conclusion in no way permits an agent of the government to step beyond the limits of his or her office to make an offer to a witness other than one traditionally exercised by the sovereign. A prosecutor who offers something other than a concession normally granted by the government in exchange for testimony is no longer the alter ego of the sovereign and is divested of the protective mantle of the government. Thus, fears our decision would permit improper use or abuse of prosecutorial authority simply have no foundation. It is noteworthy, then, that defendant’s premise relies upon the shibboleth "the government is not above the law." While we agree with that notion, we simply believe this particular statute does not exist for the government. Accordingly, we AFFIRM the district court’s denial of the motion to suppress on 18 U.S.C. § 201(c)(2) grounds. We adopt the ruling of the panel that the evidence in the record was sufficient to sustain the judgment of conviction, notwithstanding the panel’s conclusion the testimony of Mr. Douglas should have been suppressed.

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