Full court overturns Singleton decision

From Punch and Jurists, the cutting edge guide to federal criminal law

As expected, the en banc court for the Tenth Circuit has now permanently reversed a highly controversial ruling of a three-judge panel which was reported as U.S. v. Singleton, 144 F.3d 1343 (10th Cir. 1998) (Singleton I) and which was first discussed in the June 22, 1998 issue of Punch and Jurists. In Singleton I, the panel vacated a conviction of Sonya Singleton on the ground that the prosecutor had violated the Federal Anti- Gratuity Statute (18 U.S.C. § 201(c)(2)) when he offered leniency to a co-defendant in exchange for testimony against her. That statute provides, in pertinent part, that "whoever . . . directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony . . . given or to be given by such person as a witness [at] a trial . . . shall be fined . . . or imprisoned"

At her trial, Singleton moved for suppression of the testimony of her co-defendant/witness on the grounds that he had become a "paid 'occurrence' witness" whose testimony was both inherently unreliable and precisely the type of evidence that Congress intended to exclude by enacting § 201(c)(2). She also argued that under the plain meaning of the statute the Government fell within the broad term "whoever" and that promises of leniency constituted the payment of "something of value" to him. The district court denied Singleton's motion and, after she was convicted, she appealed to the Tenth Circuit, where the panel held that the testimony of the witness should have been excluded and that the error was not harmless.

Looking back, it is clear that Singleton created panic and hysteria in law enforcement circles; and, as the dissent pointed out, a powerful lobby of prosecutors quickly "attempted to portray it as the death knell for the criminal justice system as we know it." In that atmosphere of disaster and doom, the en banc Court quickly set aside the panel's ruling, pending a review by the full court of 12 judges. Oral arguments were heard in November and on January 8, 1999 the en banc court released its decision.

For all the hoopla created by this case, the majority decided to resolve the weighty issues raised in this case by addressing a single, surprisingly narrow issue of semantics, namely the definition of the word "whoever." The governing issue, as framed by the majority, was "whether section 201(c)(2) applies to the government in the prosecution of criminal offenses."

In response to it own question the majority held that § 201(c)(2) "does not apply to the United States or an Assistant United States Attorney functioning within the official scope of the office" essentially because it would be "patently absurd" to accept the defendant's argument that the word "whoever" as used in § 201(c)(2) includes the Government. "The word 'whoever' connotes a being. . . . The United States is an inanimate entity, not a being. The word 'whatever' is used commonly to refer to an inanimate object. . . . Therefore, construing 'whoever' to include the government is semantically anomalous."

Five judges (three dissenting and two concurring) strongly disagreed with that "sui generis" reasoning. The dissent, for example, wrote: "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, associations, firms, partnerships, societies, and joint stock companies­­all 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 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."

The dissenting opinion, written by Judge Kelly, openly recognized that "much of this case has been about policy. . . . [But] this court must perform its constitutional duties and no more. Ours is not to explore the furthest 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 government­­the Congress, and not the courts.

"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)."

In sum, the stage was set for a Solomonic decision of great and enduring magnitude - and one that could have put to rest the Singleton issues. What resulted was quite flat. While the majority's decision was dogmatic, pragmatic and at times caustic, its reasoning was tenuous and strained. Our own conclusion is that Singleton in not as dead as the Government had hoped nor as we had expected. The Tenth Circuit has assured that the issue will remain alive, at least for a while longer.

For an interesting look at the Singleton case, you may want to view the Public Broadcasting Station's recent show on this case, entitled "Frontline: The Case That Challenged Leniency Deals." Among other things, this site contains excerpts from the Government's brief and from interviews with defense counsel.

[Ed: Since this analysis of Singleton, legislation to gut the ethical standards statute has been introduced. See Attack on the Citizen's Protection Act.

See also Congress and the Courts Take Dramatic Steps to Address Abuse of Prosecutorial Powers

PO Box 546 - Times Square Station
New York, NY 10108-0546
Phone: (212) 765-9695
E-mail: punchjur@emedia.net