Establishing an Equal Playing Field. for Criminal Defendants in the Aftermath of United States V. Singleton

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INTRODUCTION

On July 1, 1998, the United States Court of Appeals for the Tenth Circuit announced its opinion in United States v. Singleton ("Singleton I"),(1) declaring that federal prosecutors violate the federal gratuity statute when they offer plea bargains to criminal defendants in exchange for testimony against other criminal defendants.(2) Only nine days after this stunning opinion was issued, the Tenth Circuit vacated Singleton I for a rehearing of the case en banc.(3) In January of 1999, the Tenth Circuit issued its opinion in United States v. Singleton ("Singleton II"),(4) overruling Singleton I and holding that federal prosecutors do not violate the federal gratuity statute by exchanging plea bargains for testimony because the statute does not apply to the government or its agents.(5) During the six months between Singleton I and Singleton II, over four dozen courts published opinions on whether exchanging reduced sentences for testimony violates the federal gratuity statute.(6) The high level of judicial activity during this brief period demonstrates the sizable impact that the Singleton I holding had on the legal system.

The federal gratuity statute is part of 18 U.S.C. [sections] 201(c)(2), which proscribes bribery and gratuity. Bribery and gratuity offenses both involve illegally exchanging something of value for some action or behavior, such as payment made to a politician in exchange for her vote in favor of a bill. Bribery and gratuity are distinguished from one another by the intent requirement of each offense. Bribery requires that the person making the offer intend to induce corrupt action or behavior from the recipient.(7) Gratuity involves essentially the same conduct as bribery but is a lesser offense because it does not require that the offeror actually intend to cause corruption.(8) A prosecutor who offers to reduce a convicted felon's prison sentence in exchange for the felon's knowingly false testimony against another criminal defendant is guilty of bribery under subsection 201(c)(1). The question at issue in the Singleton cases was whether a prosecutor commits the offense of gratuity, proscribed by subsection 201(c)(2), by offering a criminal defendant a reduced sentence in exchange for what the prosecutor believes will be truthful testimony against another defendant.

Although the holding in Singleton I was quickly vacated and replaced by the contrary holding of Singleton II, the Singleton I panel opened the door to a line of reasoning and argument--that federal plea bargains are illegal under the gratuity statute--that will likely resurface frequently until the Supreme Court issues an opinion on the appropriate interpretation and application of subsection 201(c)(2).(9) The decision in Singleton II, which accords with most case law interpreting subsection 201(c)(2) subsequent to Singleton I, may be the expedient and simple resolution to arguments based on the Singleton I holding, but in this case that answer is neither a reasonable interpretation of the statute nor an adequate means of maintaining a fair and effective criminal justice system.

A fair and effective criminal justice system is one that affords prosecutors sufficient powers to obtain criminal convictions while preserving for defendants the rights necessary for a just trial. Reading a government exception into subsection 201(c)(2), as did the Singleton II court, is not an adequate resolution of the issue because that interpretation sacrifices the protections the gratuity statute affords to criminal defendants and expands the powers of federal prosecutors. Under the Singleton II interpretation, federal prosecutors are not limited by subsection 201(c)(2), and thus they are not limited in what they may offer potential witnesses to induce them to testify. This gives federal prosecutors unfair bargaining power over defendants, who are constrained by subsection 201(c)(2). Reading the gratuity statute as wholly prohibiting federal prosecutors from exchanging plea agreements with criminal defendants for testimony, as the Singleton I court did, is also unsatisfactory, given how deeply ingrained plea bargaining is in our criminal justice system and how severely its banishment would hamper the ability of prosecutors to obtain criminal convictions against co-defendants. Prohibition of all plea bargains would protect the interests of criminal defendants by reducing the chance that co-defendants would be induced by plea agreements to testify falsely against them, but this reading of subsection 201(c)(2) would make it very difficult for the criminal justice system to function.

There is, however, an alternative to forcing subsection 201(c)(2) into either the Singleton I or the Singleton II interpretation--a solution that balances the interest of criminal defendants in receiving a fair trial and the interest of the government in maintaining an effective criminal justice system. The solution to this semantic nightmare is to repeal subsection 201(c)(2) altogether, allowing prosecutors and defendants alike to exchange consideration for testimony and requiring only that both sides fully disclose any such arrangement to the jury.(10) Subsection 201(b), the bribery statute, would continue to prohibit offers and deals made with intent to influence the content of a witness's testimony, but attorneys on both sides of the aisle would be free to offer consideration to encourage reluctant witnesses to testify. Since federal prosecutors are currently required to disclose the details of the plea agreements that they offer in exchange for testimony, this new rule would afford defense attorneys the same opportunity to encourage reluctant witnesses to testify, provided that they, too, met the disclosure requirements. Of course, a defense attorney, unlike a prosecutor, could not offer leniency or a reduced sentence in exchange for testimony as could a prosecutor, but the defense attorney could offer other incentives to witnesses who otherwise might be unwilling to testify. Full disclosure of consideration paid in exchange for a witness's testimony would leave to the jury the determination of whether the agreement affected the content of a particular witness's testimony. Repealing subsection 201(c)(2) and replacing it with this disclosure rule is the only fair answer to the dichotomous and unsatisfactory interpretations of the federal gratuity statute offered in Singleton I and Singleton II.

This Note considers both Singleton decisions and the various interpretations of subsection 201(c)(2) offered in those cases and their progeny. It proposes that repealing subsection 201(c)(2) is the most reasonable way both to resolve the conflicting interpretations of the statute and to maximize the fairness and effectiveness of the criminal justice system. Part I of this Note reviews the origins and development of the explosive debate over the proper interpretation of subsection 201(c)(2) in the federal judiciary. Part II analyzes the plain meaning and legislative history of subsection 201(c) both independently and as discussed in federal case law. Part III evaluates the competing judicial interpretations of subsection 201(c)(2), comparing the strongest arguments for and against excluding the government and its agents from the reach of the gratuity statute. Part IV considers the failure of these competing judicial interpretations to address or redress the fundamental imbalance created by allowing prosecutors, but not defendants, to make deals with potential witnesses to encourage testimony. Part IV then proposes the repeal of subsection 201(c)(2) in favor of a rule that allows federal prosecutors and defendants alike to exchange consideration for testimony provided that such arrangements are disclosed to the jury.

I. UNITED STATES V. SINGLETON: THE BEGINNING OF THE BATTLE

An investigation of a conspiracy to launder drug money and to distribute cocaine culminated in the arrest of Sonya Evette Singleton, Napoleon Douglas, and several other individuals.(11) Douglas entered into a plea agreement with the government, promising to testify against Singleton and other defendants in return for promises by the government (1) not to prosecute Douglas for any other criminal acts related to the narcotics investigation, (2) to inform the court of the nature and extent of Douglas's cooperation, and (3) to advise the state parole board of the nature and extent of Douglas's cooperation.(12)

Singleton challenged the admissibility of Douglas's testimony, alleging that the plea bargain federal prosecutors had offered Douglas violated the federal gratuity statute.(13) The trial court overruled Singleton's objection, allowing Douglas to testify, and Singleton was convicted.(14) Singleton appealed, alleging that admission of Douglas's testimony was reversible error.(15)

The U.S. Court of Appeals for the Tenth Circuit reviewed Singleton's appeal and, in a detailed opinion written by Judge Kelly, considered four possible reasons for excluding federal prosecutors from the federal gratuity statute. The court rejected each reason, concluding that none justified excluding the government from the broad language of subsection 201(c)(2). Thus, the Singleton I court held that federal prosecutors violate the federal gratuity statute when they plea bargain with witnesses to induce them to testify.(16) The unanimous Tenth Circuit panel reversed Singleton's conviction and remanded the case for a new trial, in which Douglas's illegally obtained testimony would be excluded.(17)

The Singleton I decision had quick and widespread aftershocks,(18) Although a few courts supported the decision,(19) most did not.(20) In fact, only two district courts have followed the decision in Singleton I, and one of those has been reversed on appeal.(21) On January 8, 1999, the Tenth Circuit itself issued an en banc opinion in Singleton II, reversing the short-lived holding in Singleton I.(22) Yet, the reasoning in Singleton L which gave credibility to reading subsection 201(c)(2) as applying to agents of the federal government, has since been used frequently by defendants in both federal and state courts.(23) None of the courts that have considered arguments similar to the reasoning in Singleton I have satisfactorily dispelled the Singleton I analysis.(24)

Most of the federal courts that have evaluated whether subsection 201(c)(2) applies to plea bargaining in the aftermath of Singleton I have provided little or no legal analysis of the issue. Instead, these courts have either cited the reasoning offered in earlier court opinions that had rejected the analysis of Singleton I or declined to follow Singleton I because it did not comport with longstanding common law and practice.(25)

To understand the conflict between the Singleton I and Singleton II cases and their progeny, one must consider principles of statutory construction, public policy, and judicial precedent. We begin with an examination of the statute's text and legislative history.(26)

II. THE LANGUAGE AND LEGISLATIVE HISTORY OF 18 U.S.C. [sections] 201(c)(2)

Subsection 201(c)(2) was enacted in substantially its current form over thirty-five years ago.(27) Yet, no conflict regarding the scope of the statute and no body of judicial interpretation of subsection 201(c)(2) existed until Singleton I. To ascertain the meaning and proper application of the statute, one must first examine its text, considering also the intent of the Congress that crafted the law more than three decades ago.

A. The Language and Plain Meaning of Subsection 201(c)(2)

Section 201 is divided into two sections, one that prohibits bribery and the other gratuity.(28) Subsection 201(b), the bribery provision, makes it illegal to offer something of value to a public official or to a witness with intent to corrupt that witness's testimony. Subsection 201(c)(2), the gratuity provision, is similar to subsection 201(b), but it does not require that an offender intend to corrupt the testimony of the witness. Subsection 201(c)(2) provides:

   Whoever ... 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,
   hearing, or other proceeding, before any court, any committee of either
   House or both Houses of Congress, or any agency, commission, or officer
   authorized by the laws of the United States to hear evidence or take
   testimony, or for or because of such person's absence therefrom; ... shall
   be fined under this title or imprisoned for not more than two years, or
   both.(29)

The U.S. Supreme Court has stated that, when interpreting a statute, the clear and plain meaning of the text should be controlling unless there is an ambiguity that requires examination of the statute's legislative history for clarification.(30) On its face, the language of subsection 201(c)(2) seems to apply to the government and its agents and therefore to proscribe government officials from exchanging plea bargains for testimony.(31) Subsection 201(c)(2) uses the word "whoever," one of the most inclusive terms Congress could have used in establishing the set of entities to which the statute applies.

In Singleton II, however, Judge Porfilio, writing for the majority, found that the dictionary definition of "whoever" does not include the government.(32) Judge Porfilio asserted that, under its "common meaning," the term "whoever" refers to people.(33) Judge Porfilio reasoned that the legislature would have used the impersonal "whatever," in addition to "whoever," if it had meant to include the government and other entities within the gratuity statute.(34) Since Congress used only "whoever," the Singleton II court found that "construing `whoever' to include the government [would be] semantically anomalous."(35) Finding that the United States as an entity includes the federal prosecutors who act as its voice in federal courts, the court further held that federal prosecutors are not included in the definition of "whoever" in subsection 201(c)(2).(36)

The Singleton II majority's restrictive interpretation of "whoever" was not satisfactory to all, however, as Judge Kelly, author of the majority opinion in Singleton I, made clear in a dissenting opinion. In his …