United States v. Ramsey, Charles W. ( 1999 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 1998 Decided February 9, 1999
Nos. 97-3100 and 97-3184
United States of America,
Appellee
v.
Charles W. Ramsey,
Appellant
Appeals from the United States District Court
for the District of Columbia
(No. 95cr00326-01)
---------
Francis D. Carter, appointed by the court, argued the
cause for the appellant.
Charles W. Ramsey filed a brief pro se.
Michael Fitzpatrick, Assistant United States Attorney, ar-
gued the cause for the appellee. Wilma A. Lewis, United
States Attorney, and John R. Fisher, Mary-Patrice Brown
and John P. Dominguez, Assistant United States Attorneys,
were on brief for the appellee.
Before: Wald, Williams and Henderson, Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Charles Ram-
sey was convicted of one count of possessing cocaine with
intent to distribute in violation of 21 U.S.C. s 841(a)(1),
(b)(1)(B)(ii). Through counsel, Ramsey raises several issues,
including whether the trial court erred: (1) in allowing the
Government to introduce evidence of Ramsey's character; (2)
in failing to find entrapment as a matter of law and (3) in
sentencing Ramsey to 210 months' imprisonment. Ramsey
pro se appeals the Government's use of Francisco Fierro as
an informant witness. Finding no error, we affirm Ramsey's
conviction and sentence.
I. Background
On December 14, 1995, Ramsey was charged in a two-count
indictment with one count of possessing cocaine with intent to
distribute, see 21 U.S.C. s 841(a)(1), (b)(1)(B)(ii), and one
count of attempted possession with intent to distribute, see 21
U.S.C. s 846. The charges arose out of a Drug Enforcement
Administration (DEA) undercover operation that began earli-
er in 1995 when Francisco Fierro agreed to assist DEA as an
informant, following his arrest for attempted murder and
various weapons offenses after a fight in a Miami restaurant.
Although Fierro could provide no leads in Florida, DEA
decided to use Fierro as an informant in the Washington,
D.C. area because his main client had been a Washington-
area drug dealer named Charles Ramsey. Fierro informed
DEA Agent Ronald Woods that he had delivered substantial
quantities of drugs to Ramsey in Washington at least eight
times in 1993-94 and that Ramsey accounted for all of his
kilogram-level sales.
The first transaction between Fierro and Ramsey took
place in Georgetown in early 1993 when Fierro delivered
approximately seven ounces of heroin to Ramsey. Seven
times over the following year, Fierro delivered between one
and ten kilograms of cocaine to Ramsey, selling him in toto 39
kilograms of cocaine for approximately $20,000 each.1 The
two men used a delivery procedure that involved a meeting,
usually in a hotel room, where Fierro "fronted" Ramsey one
or two kilograms. Ramsey then left to sell the cocaine and
returned later with payment. Fierro then fronted Ramsey
another one or two kilograms and Ramsey repeated the
procedure until all of the drugs had been sold, usually within
one week. In mid-1994, at his wife's insistence, Fierro left
the drug trade.
In September 1995 DEA decided to use Fierro in a "re-
verse" undercover operation against Ramsey. DEA's initial
plan was to conduct the transaction differently from the way
Fierro and Ramsey had traditionally done business--by mak-
ing Ramsey pay for the drugs up front. DEA also sought to
increase its control over the operation by having DEA Agent
Robert Valentine pose as a drug dealer. Fierro's role was to
facilitate the exchange between Valentine and Ramsey.
Between mid-September 1995 and his arrest on November
21, 1995, Ramsey and Fierro had numerous recorded tele-
phone and face-to-face conversations about drug transactions.
Most of the conversations were recorded by DEA or by
Fierro using DEA-supplied equipment. On September 25,
1995 Ramsey met Fierro in a hotel room. During a video-
taped conversation, they discussed a five-kilogram transaction
and the fact that Valentine, posing as the distributor, re-
quired payment up front. While Ramsey was eager to move
several kilograms, he did not have the cash to buy the drugs
at delivery. On October 6, 1995 Valentine and Ramsey met
without Fierro at a restaurant. Ramsey mentioned that
Washington was currently "dry" of cocaine on both the whole-
sale and retail levels, a fact consistent with DEA information.
Ramsey wanted to know if the drugs could be fronted but
Valentine refused. Nevertheless, Valentine assured Ramsey
__________
1 The district court ruled that Ramsey's seven cocaine transac-
tions with Fierro were admissible to show intent and absence of
mistake under Fed. R. Evid. 404(b) but it ruled any reference to the
heroin from their first transaction inadmissible under Fed. R. Evid.
403.
that he would contact him about selling five kilograms of
cocaine.
On October 24, 1995 Valentine and Fierro met Ramsey at a
hotel. They had cocaine with them. In an audio taped
conversation Ramsey asked to see the cocaine but, after going
"around and around" with Valentine, still refused to pay up
front. Tr. at 506. The three men arranged to meet again on
November 2, 1995. On November 2, in a videotaped conver-
sation in Valentine's car, Valentine showed Ramsey five one-
kilogram bricks. Ramsey said that he could move the cocaine
quickly and offered to pay for one kilogram but not until 8:00
p.m. that evening. Becoming increasingly suspicious, Valen-
tine rejected the offer.
After this transaction fell through, it was clear to DEA that
Ramsey would not deal unless he was fronted the drugs and
that Ramsey preferred to deal only with Fierro. Therefore,
DEA changed its strategy by pulling Valentine out of the
operation and instructing Fierro to arrange a buy using his
old procedure. On November 15, 1995 Fierro contacted
Ramsey and offered to front him five kilograms on November
21, 1995. When Ramsey arrived at Fierro's hotel room on
the 21st, Fierro showed him the five one-kilogram bricks.
Agreeing to a cost of $20,000 each, Ramsey decided to take
two kilograms and said that he would return for the other
three. Ramsey then placed the two bricks inside a black
duffle bag and left the room. He was arrested by DEA
agents in the hallway and the drugs were recovered from his
bag.2
On May 14, 1996 Ramsey's jury trial commenced in the
district court. On May 21, 1996 the jury returned a guilty
verdict on the first count. Before sentencing, Ramsey filed a
__________
2 Ramsey gave DEA a written statement before signing a
written waiver of his Fifth and Sixth Amendment rights. After the
statement had been admitted into evidence at trial, the district
court suppressed the statement. Ramsey's defense counsel affir-
matively asked that a mistrial not be granted. The district court
instructed the jury to disregard the statement and related testimo-
ny.
pro se motion for a new trial, arguing ineffective assistance of
counsel. The district court appointed new counsel on Sep-
tember 16, 1996 and issued an order on June 27, 1997 denying
Ramsey's new trial motion as not timely filed. After a
hearing, the district court denied Ramsey's objections to the
presentence report in a December 15, 1997 order. On De-
cember 17, 1997 the district court sentenced Ramsey to 210
months' imprisonment followed by eight years of supervised
release. Ramsey timely filed this appeal, requesting that his
conviction be reversed or, alternatively, that he be resen-
tenced.
II. Discussion
A.
On appeal, Ramsey advances several arguments, all without
merit. First, Ramsey argues that the district court erred by
twice admitting Valentine's testimony about Ramsey's past
criminal history. The district court, however, did not abuse
its discretion3 in admitting the evidence because Valentine's
testimony was not elicited to show Ramsey's propensity to
commit a crime, see Fed. R. Evid. 404(a), but rather as a
response to defense counsel's attempts to challenge the volun-
tariness of Ramsey's statement and to defense counsel's
theory that DEA had entrapped Ramsey based on the "lies"
of its informant, Fierro. As the record manifests, Ramsey's
counsel raised the subject of his client's extensive criminal
history. See United States v. Davis, 127 F.3d 68, 71 (D.C.
Cir. 1997) ("The elicitation by the defense of the very testimo-
ny now challenged ... for its own affirmative purposes, is an
independent reason for finding no error...."), cert. denied,
119 S. Ct. 215 (1998); United States v. Baumgarten, 517 F.2d
1020, 1029 (8th Cir. 1975) (finding no prejudice from redirect
__________
3 If defense counsel properly preserved his objection at trial,
we review the district court's admission of evidence for abuse of
discretion. See United States v. Salamanca, 990 F.2d 629, 637
(D.C. Cir.), cert. denied, 510 U.S. 928 (1993). Nevertheless, the
district court's decision to admit evidence, even of prior bad acts, is
entitled to "much deference" on review. United States v. Lewis,
693 F.2d 189, 193 (D.C. Cir. 1982).
regarding defendant's prior arrests after defense counsel, on
cross-examination of government witness, raised issue), cert.
denied, 423 U.S. 878 (1975). Moreover, Ramsey was not
prejudiced by the testimony since the Government had al-
ready introduced evidence of two previous narcotics convic-
tions to rebut Ramsey's entrapment defense.
Second, Ramsey contends that Valentine provided opinion
testimony about the drug trade even though he was not
qualified as an expert witness under Federal Rule of Evi-
dence 702.4 We believe that the district court did not plainly
err in admitting this testimony. Although the trial judge
never formally qualified Valentine as an expert witness, his
testimony functionally satisfied the requirements for expert
testimony set forth in Federal Rule of Evidence 702.5 See
United States v. Walls, 70 F.3d 1323, 1326 (D.C. Cir. 1995)
(finding opinion testimony admissible under Rule 702 as
" 'specialized knowledge' [that] would 'assist the trier of fact
to understand the evidence' ") (quoting Fed. R. Evid. 702),
cert. denied, 117 S. Ct. 90 (1996); United States v. McDonald,
933 F.2d 1519, 1522 n.2 (10th Cir.) (where "the court heard
the witness describe his qualifications, including his special-
ized knowledge, education, skill and experience, and then
allowed the witness to give opinion testimony," appellate
court can assume witness was accepted as expert witness),
cert. denied, 502 U.S. 897 (1991); United States v. Maher, 645
F.2d 780, 783-84 (9th Cir. 1981) (DEA agent not qualified as
expert but his expert testimony on drug trade was upheld in
light of his experience).
We also find no plain error in the district court's failure to
instruct the jury regarding the proper weight to be given
Valentine's opinion testimony since Ramsey can show no
prejudice from the admission of that testimony. See United
States v. Olano, 507 U.S. 725, 734 (1993) (in plain error cases
__________
4 Because Ramsey made no objection at trial, our review is for
plain error. See Lewis, 693 F.2d at 193.
5 Rule 702 states in part: "[A] witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise."
appellant bears "burden of persuasion with respect to preju-
dice"); United States v. Catlett, 97 F.3d 565, 571 (D.C. Cir.
1996) (no bar in this Circuit to "dual testimony as both a fact
and expert witness"); see also United States v. Anderskow,
88 F.3d 245, 251 (3d Cir.) (no prejudice in light of overwhelm-
ing evidence of defendant's predisposition and guilt and fact
that Government did not rely on challenged opinion testimony
during summation), cert. denied, 117 S. Ct. 613 (1996). In
fact, Ramsey's own counsel repeatedly asked Valentine for
opinion testimony during cross-examination.
Nor do we accept Ramsey's contention that Valentine's
purported opinion testimony violated Federal Rule of Evi-
dence 704 given the context of the prosecutor's question and
Valentine's answer. See United States v. Smart, 98 F.3d
1379, 1388 (D.C. Cir. 1996) (adopting Seventh Circuit test to
determine whether expert testimony violates Rule 704(b),
which "assess[es] two key elements," to wit: "(1) the lan-
guage used by the questioner and/or the expert, including use
of the actual word 'intent'; and (2) whether the context of the
testimony makes clear to the jury that the opinion is based on
knowledge of general criminal practices, rather than some
special knowledge of the defendant's mental processes") (quo-
tation omitted), cert. denied, 117 S. Ct. 1271 (1997). After an
initial defense objection, the district court allowed the prose-
cutor to ask Valentine, "[D]id you have information indepen-
dent of what you learned from [Fierro] and Mr. Ramsey
himself which led you to believe that Mr. Ramsey would be
ready and willing and able to engage in this cocaine transac-
tion?" Tr. at 552. Ramsey argues that by answering "Yes"
to the prosecutor's question, Valentine, if considered an ex-
pert witness, violated Rule 704(b) ("[n]o expert witness testi-
fying with respect to the mental state or condition of a
defendant in a criminal case may state an opinion or inference
as to whether the defendant did or did not have the mental
state or condition constituting an element of the crime
charged or of a defense thereto"). Since predisposition to
commit a crime implicates Ramsey's entrapment defense, he
argues that Valentine's affirmation that he was "ready and
willing and able to engage in this cocaine transaction," with-
out a limiting jury instruction is plain error, citing United
States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995), and United
States v. Williams, 980 F.2d 1463, 1466 (D.C. Cir. 1992).
Valentine, however, testified merely as to his agency's knowl-
edge and intent at the time it decided to initiate an undercov-
er operation against Ramsey to rebut defense counsel's sug-
gestion that DEA relied solely on Fierro for information
about Ramsey's willingness to deal drugs. See, e.g., Tr. at
550 (prosecutor affirming, "All I want to ask [Valentine] is if
he has pertinent information that led him to believe that
there was not going to be an entrapment issue....").
We next reject Ramsey's claim of entrapment as a matter
of law because the record contains ample evidence that
Ramsey was predisposed to commit a drug offense. See
United States v. Neville, 82 F.3d 1101, 1107 (D.C. Cir. 1996);
United States v. Budd, 23 F.3d 442, 445 (D.C. Cir. 1994), cert.
denied, 513 U.S. 1115 (1995).6 The record reflects that
__________
6 To establish entrapment Ramsey must first show that he was
induced by the Government to commit a crime he otherwise would
not have committed. If Ramsey meets his burden, the Government
must then prove beyond a reasonable doubt that he was predis-
posed to commit the crime. See Neville, 82 F.3d at 1107; Budd, 23
F.3d at 445. Under our "bifurcated approach," "the jury, not the
judge, decides whether the defendant has carried his burden of
proving inducement" and, if so, whether "the government has met
its burden of proving predisposition." United States v. Whoie, 925
F.2d 1481, 1483 (D.C. Cir. 1991). Our review "focus[es] on the
predisposition issue" and "must uphold the jury's verdict if, viewing
the evidence in the light most favorable to the Government, a
reasonable jury could have found that the Government proved
beyond a reasonable doubt that the defendant was predisposed to
commit the crime." Neville, 82 F.3d at 1107 (citing Budd, 23 F.3d
at 445 & n.2). To establish predisposition, the Government must
show a "state of mind which readily responds to the opportunity
furnished by the officer or his agent to commit the forbidden act,"
United States v. Burkley, 591 F.2d 903, 916 (D.C. Cir. 1978)
(quotation omitted), cert. denied, 440 U.S. 966 (1979), based on "the
entirety of the events surrounding the ultimate commission of the
crime," United States v. Kelly, 748 F.2d 691, 699 (D.C. Cir. 1984).
Relevant considerations include: Ramsey's level of interest in the
Ramsey had a long history of dealing in substantial quantities
of drugs. This evidence includes: 1975 and 1976 convictions
of similar offenses, see Neville, 82 F.3d at 1107-08 (finding
evidence of prior criminal activity probative of appellant's
predisposition); testimony by Fierro, Valentine and Agent
Woods that Ramsey had frequently and recently bought large
quantities of cocaine from Fierro using "fronting" to pay for
the drugs; and Ramsey's recorded admissions of previous
narcotics deals and interest in having Fierro supply him with
cocaine. Although Ramsey points to his several unproductive
meetings with Fierro and Valentine to suggest that he was
reluctant to buy, his reluctance evaporated as soon as Fierro
agreed to front him the drugs.
Nor did the district court err in counting the 39 kilograms
of cocaine Ramsey purchased from Fierro in 1993-94 as part
of the "same course of conduct" as Ramsey's offense of
conviction under the Sentencing Guidelines. U.S.S.G.
s 1B1.3(a)(2) (requiring district court to determine offense
level "solely with respect to offenses ... that were part of the
same course of conduct or common scheme or plan as the
offense of conviction"); see United States v. Ramsey, No.
95-326, at 3-6 (D.D.C. Dec. 15, 1997) (sentencing opinion);
see also United States v. Pinnick, 47 F.3d 434, 438 (D.C. Cir.
1995) (clear error review of district court's determination that
past conduct is related to offense of conviction). "Extraneous
offenses qualify as part of the same course of conduct if 'they
are sufficiently connected or related to each other as to
warrant the conclusion that they are part of a single episode,
spree, or ongoing series of offenses.' " Pinnick, 47 F.3d at
438 (quoting U.S.S.G. s 1B1.3(a)(2), comment n.9(B)). Thus,
the district court's inquiry must "focus[ ] on whether the
defendant repeats the same type of criminal activity over time
and engage[s] in an identifiable behavior pattern of specified
criminal activity." Id. (quotation omitted). Here, the district
__________
transaction, the pressure applied by the Government, any reluc-
tance displayed by Ramsey and Ramsey's past illegal conduct. See
Neville, 82 F.3d at 1107-08; Budd, 23 F.3d at 446; Burkley, 591
F.2d at 916.
court went beyond an analysis of temporal proximity, noting
that the transactions involved the same parties, see United
States v. Jones, 948 F.2d 732, 737 (D.C. Cir. 1991), were of a
similar character and nature and involved between one and
ten one-kilogram bricks of cocaine, see Pinnick, 47 F.3d at
439, and that the temporary hiatus was Fierro's, rather than
Ramsey's, decision. See United States v. Santiago, 906 F.2d
867, 872 (2d Cir. 1990) (transactions separated by 8-14
months while buyer was incarcerated were sufficiently similar
in other respects to constitute same course of conduct).
Since Ramsey's nine drug transactions with Fierro manifest-
ed an ongoing relationship and pattern of criminal activity,
the district court did not clearly err in counting 39 kilograms
from previous transactions as part of the "same course of
conduct" under U.S.S.G. s 1B1.3(a)(2).
Finally, Ramsey cannot establish sentencing entrapment
because the district court correctly found that he was predis-
posed to purchase five kilograms on November 21, 1995. See
United States v. Shepherd, 102 F.3d 558, 566 (D.C. Cir. 1997)
(for sentencing entrapment "main element ... is ... the
defendant's predisposition") (quotation omitted); Walls, 70
F.3d at 1329 (same); see also United States v. Washington,
106 F.3d 983, 1015 (D.C. Cir. 1997) (reviewing district court's
findings of fact for clear error, "giving due deference to the
district court's application of the Guidelines to the facts"),
cert. denied, 118 S.Ct. 446 (1997). For instance, the record
shows inter alia that Ramsey saw the five kilograms, asked
Fierro to supply drugs weekly and routinely purchased up to
ten, but ordinarily five, kilograms using the fronting method.
See Shepherd, 120 F.3d at 566.7
__________
7 In any event our decision affirming the district court's finding
that Ramsey's relevant conduct included the 39 kilograms that he
purchased in 1993-94 makes his sentencing entrapment argument
moot. The district court attributed 44 kilograms of cocaine to
Ramsey, of which five kilograms were from his November 21, 1995
offense of conviction, in calculating a base offense level of 34.
Nevertheless, Ramsey asserts that he was only predisposed to
purchase one of the five kilograms of cocaine from Fierro on
November 21, 1995. See Appellant's Br. at 31-32; Appellee's Br. at
B.
Ramsey's pro se challenge8 requires a lengthier discussion
not because of its merit but because our Circuit has not
heretofore ruled on the challenge that our sister circuit courts
have rejected. Ramsey asks this Court to consider whether
the Government's use of Fierro as an informant violated 18
U.S.C. s 201(c)(2).9 Ramsey made his challenge after the
Tenth Circuit, in an unprecedented10 decision, held that a
federal prosecutor's agreement granting leniency to an ac-
complice in return for truthful testimony as a government
witness violated the plain language of section 201(c)(2). See
United States v. Singleton, 144 F.3d 1343, 1352 (10th Cir.
1998). The court therefore held inadmissible the accomplice's
testimony and reversed Singleton's conviction. See id. at
1347. The Tenth Circuit sitting en banc has since reversed
the panel decision. See United States v. Singleton, 1999 WL
6469 (10th Cir. Jan. 8, 1999) (en banc). In the meantime, the
Singleton panel's interpretation of section 201(c)(2) has been
rejected by the Fifth and Sixth Circuits and every federal
district court to consider the issue, save three. See, e.g.,
__________
31 & n.22. But see Sentencing Tr. at 13 (Ramsey's counsel in-
formed court that relevant amount of drugs was "two kilograms of
cocaine [Ramsey] walked out the door with"). According to
U.S.S.G. s 2D1.1(c)(3), however, "[a]t least 15 KG but less than 50
KG of [c]ocaine" places Ramsey at level 34. Thus, reducing the
amount of cocaine attributable to Ramsey by four (or even five)
kilograms is of no significance.
8 Because Ramsey makes this argument for the first time on
appeal, we apply the plain error standard of review. See Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725 (1993).
9 Section 201(c)(2) subjects to criminal liability: "Whoever ...
directly or indirectly, gives, offers or promises anything of value to
any person, for or because of the testimony under oath or affirma-
tion given or to be given by such person as a witness" in a federal
trial or proceeding.
10 Until Singleton, no other court in the thirty-six year history
of section 201(c)(2) had applied its prohibition to a prosecutorial
grant of leniency in exchange for truthful testimony.
United States v. Haese, 162 F.3d 359, 366 (5th Cir. 1998)
(rejecting Singleton and noting that circuit precedent has
"consistently ... upheld government efforts to provide bene-
fits to witnesses in exchange for testimony") (quotation omit-
ted); United States v. Webster, 162 F.3d 308, 357-58 (5th Cir.
1998) (rejecting Singleton on plain error review); United
States v. Ware, 161 F.3d 414 (6th Cir. 1998); United States v.
Szur, 1998 WL 661484 (S.D.N.Y. Sept. 24, 1998); United
States v. Mejia, 1998 WL 598098 (S.D.N.Y. Sept. 8, 1998);
United States v. Barbaro, 1998 WL 556152 (S.D.N.Y. Sept. 1,
1998) (rejecting Singleton because of historical acceptance of
leniency in exchange for truthful testimony); United States v.
Juncal, 1998 WL 525800 (S.D.N.Y. Aug. 20, 1998) (relying on
historical acceptance of leniency in exchange for testimony
and on canon of statutory construction requiring that govern-
ment be expressly included in statutory text to come within
statute's purview); United States v. Reid, 19 F. Supp. 2d 534(E.D. Va. 1998); United States v. Arana, 18 F. Supp. 2d 715(E.D. Mich. 1998); United States v. Dunlap, 17 F. Supp. 2d
1183 (D. Colo. 1998); United States v. Pungitore, 15 F. Supp.
2d 705 (E.D. Pa. 1998); United States v. Guillaume, 13
F. Supp. 2d 1331 (S.D. Fla. 1998); United States v. Eisen-
hardt, 10 F. Supp. 2d 521 (D. Md. 1998) (criticizing Single-
ton's reasoning, particularly application of exclusionary rule);
United States v. Gabourel, 9 F. Supp. 2d 1246 (D. Colo. 1998).
But see United States v. Mays, No. 97-CR-127 (E.D. Tenn.
Sept. 18, 1998); United States v. Lowery, 15 F. Supp. 2d 1348(S.D. Fla. 1998) (agreeing with Singleton that plain meaning
of section 201(c)(2) encompasses government); United States
v. Fraguela, 1998 WL 560352 (E.D. La. Aug. 27, 1998)
(adopting Lowery).
For several reasons, we hold that section 201(c)(2) does not
prohibit the Government from granting leniency in exchange
for truthful testimony.
We first look to the Dictionary Act, 1 U.S.C. s 1, which is
to be used "[i]n determining the meaning of any Act of
Congress, unless the context indicates otherwise," and note
that its definition of "whoever" does not expressly include the
United States. 1 U.S.C. s 1 (defining "whoever" to include
"corporations, companies, associations, firms, partnerships,
societies, and joint stock companies, as well as individuals").
Moreover, we conclude that the meaning of "[w]hoever" in
section 201(c)(2) should be limited by the canon of construc-
tion that a statute does not apply to the government or affect
governmental rights unless the text expressly includes the
government. In United States v. Nardone, 302 U.S. 379, 383
(1937), the Supreme Court declared, "[T]he cases in which
[the canon] has been applied fall into two classes." First, the
canon applies if application of the statute to the United States
"would deprive the sovereign of a recognized or established
prerogative title or interest." Id. There are, according to
Nardone, two exceptions to this class of cases. Under the
first exception, "[t]he 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." Id.11
The Nardone canon also applies if application of the statute
to public agents would create an obvious absurdity. See id.
at 384; see also United States v. Granderson, 511 U.S. 39, 47
n.5 (1994) (statute's plain meaning disregarded if it "leads to
an absurd result").12
We first conclude that application of section 201(c)(2) to the
United States would deprive the sovereign of a critically
important interest, one that is well established in our legal
system and recognized by the courts, the Congress and, more
recently, the United States Sentencing Commission. The
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11 The second exception to this class of cases provides that "the
sovereign is embraced by general words of a statute intended to
prevent injury and wrong" even if the statute infringes upon a
recognized government prerogative. Nardone, 302 U.S. at 384.
12 As at least two courts have noted, Nardone did not expressly
so limit the canon's applicability. See Ware, 161 F.3d at 419 n.1;
Arana, 18 F. Supp. 2d at 718 ("Nothing in [Nardone] or any other
Supreme Court decision 'limits' application of the canon to only the
two classes of cases mentioned."). Nardone simply noted that the
canon "has been applied" to the two types of cases discussed
therein. Nardone, 302 U.S. at 383.
prosecutorial prerogative to recommend leniency in exchange
for truthful testimony arises from English common law, see
Ware, 161 F.3d at 419, and has been repeatedly approved by
the United States Supreme Court, which noted its "ancient"
origins and "established usage" in holding:
that an accomplice duly admitted as a witness in a
criminal prosecution against his associates ... , if he
testifies fully and fairly, will not be prosecuted for the
same offence.... When he fulfills those conditions he is
equitably entitled to a pardon, and the prosecutor, and
the court if need be, when fully informed of the facts, will
join in such a recommendation.
The Whiskey Cases (United States v. Ford), 99 U.S. 594, 599-
601, 604 (1878). Although the Supreme Court has not yet
addressed the issue before us, it has consistently upheld the
practice of plea bargaining. Other Supreme Court cases
sanction by implication a prosecutorial promise of leniency in
exchange for truthful testimony. See Delaware v. Van Ars-
dall, 475 U.S. 673, 679-80 (1986) (concluding that court's
refusal to allow defendant to question witness about dis-
missed charge violated Sixth Amendment right to confronta-
tion); Roberts v. United States, 445 U.S. 552, 558 (1980)
(affirming sentence due in part to defendant's refusal to
cooperate with government in spite of being offered "favor-
able disposition of his case"); id. at 568 (Marshall, J., dissent-
ing) (expressly upholding plea bargaining process); Giglio v.
United States, 405 U.S. 150 (1972) (holding prosecution's
failure to disclose promise of leniency to witness, provided in
exchange for that witness's testimony, violated due process).
Circuit courts have been more explicit in their approval of a
prosecutorial plea agreement with an accomplice or co-
defendant conditioned on his truthful testimony for the Gov-
ernment. See, e.g., United States v. Gomez, 810 F.2d 947, 956
(10th Cir. ), cert. denied, 482 U.S. 908 (1987); United States v.
Dailey, 759 F.2d 192, 196 (1st Cir. 1985) (noting that "[l]ong
ago the courts rejected the notion that the testimony of co-
defendants and other interested witnesses was so likely to be
unreliable that it should be excluded"); United States v.
Kimble, 719 F.2d 1253 (5th Cir. 1983), cert. denied, 464 U.S.
1073 (1984); United States v. McCallie, 554 F.2d 770, 772 (6th
Cir. 1977); United States v. Barrett, 505 F.2d 1091, 1102 (7th
Cir. 1974) (sanctioning grant of civil immunity in exchange for
testimony and stating, "If the government can excuse crimi-
nal or civil liability in settling a criminal case, surely it can
use that power of compromise to obtain guilty pleas or to
procure testimony in other proceedings. Both are legitimate
objectives of plea bargaining.") (emphasis original), cert. de-
nied, 421 U.S. 964 (1975). According to the Fifth Circuit,
"No 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), cert.
denied sub nom. Nelson v. United States, 484 U.S. 1026(1988).
Moreover, the Federal Rules of Criminal Procedure recog-
nize and accept plea bargaining. Although Rule 11(e), which
sets out the procedure governing plea agreements, does not
identify the types of commitments the Government may ask
of individuals in exchange for leniency, the Advisory Commit-
tee notes recognize that an agreement may require more than
relinquishing the right to trial. According to the notes to the
1975 amendments of Rule 11:
[It is apparent, though not explicitly stated, that Rule
11(e) contemplates that the plea agreement may bind the
defendant to do more than just plead guilty or nolo
contendere. For example, the plea agreement may bind
the defendant to cooperate with the prosecution in a
different investigation. The Committee intends by its
approval of Rule 11(e) to permit the parties to agree on
such terms in a plea agreement.]
Fed. R. Crim. P. 11 Advisory Committee's notes (1975)
(brackets in original); see also id. Advisory Committee's
notes (1974) ("plea agreement[s] may also contribute to the
successful prosecution of other more serious offenders").
In addition, both the United States Code and the Sentenc-
ing Guidelines contemplate the prosecutor's use of a plea
agreement in exchange for truthful testimony against a defen-
dant. For example, the Sentencing Reform Act of 1984
established the United States Sentencing Commission and
explicitly required it "to take into account a defendant's
substantial assistance in the investigation or prosecution of
another person who has committed an offense." 28 U.S.C.
s 994(n). The 1984 Act also allows a court on the Govern-
ment's motion "to impose a sentence below a level established
by statute as minimum sentence so as to reflect a defendant's
substantial assistance in the investigation or prosecution of
another person who has committed an offense." 18 U.S.C.
s 3553(e). The Sentencing Guidelines themselves authorize
the sentencing court to depart downward for any defendant
who provides "substantial assistance in the investigation or
prosecution of another person who has committed an offense."
U.S.S.G. s 5K1.1. Among the factors the court may consider
in determining whether to grant the Government's motion for
downward departure are "the truthfulness, completeness, and
reliability of any information or testimony provided by the
defendant." U.S.S.G. s 5K1.1(a)(2).
Moreover, application of section 201(c)(2) to the Govern-
ment obstructs the sovereign's, not the individual prosecu-
tor's, interest in plea agreements inasmuch as the prosecutor
brings federal criminal charges in the name of the United
States. As the Sixth Circuit aptly noted:
When an assistant United States Attorney (AUSA) en-
ters 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 s 5K1.1, does so as the government.
Ware, 161 F.3d at 421; see also 18 U.S.C. s 3553(e) (allowing
sentence reduction "[u]pon motion of the government").
Nor are we persuaded by any assertion that the Congress
intended section 201(c)(2) "to prevent fraud, injury, or wrong"
arising from government offers of leniency in exchange for
truthful testimony. A prosecutor is obligated to disclose any
benefit conferred on any witness, see Giglio, 405 U.S. at 150,
and a benefit conferred under a plea agreement must be
approved by the district court. See Fed. R. Crim. P. 11(e).
Furthermore, any prosecutor who attempts to "corruptly"
bribe a witness could be prosecuted under 18 U.S.C.
s 201(b)(3).13 Accordingly, having determined that neither of
the exceptions to the first class of Nardone cases applies, we
conclude that application of section 201(c)(2) to the Govern-
ment would deprive the sovereign of a recognized and estab-
lished prerogative and interest. See Nardone, 302 U.S. at
383.
In addition, we believe this case falls within the second
class of cases to which the Nardone canon applies. Applica-
tion of section 201(c)(2) to a federal prosecutor offering
leniency in exchange for truthful testimony works obvious
absurdities. To interpret section 201(c)(2) as the Tenth Cir-
cuit originally did, see Singleton 144 F.3d at 1346-48, would
expose to criminal liability any federal prosecutor who en-
tered into a plea agreement pursuant to Rule 11(e) and any
federal judge who either approved a Rule 11(e) plea agree-
ment or reduced a sentence pursuant to 18 U.S.C. s 3553(e)
or U.S.S.G. s 5K1.1(a)(2) based in part on a witness's testimo-
__________
13 Section 201(b)(3) subjects to criminal liability:
Whoever ... directly or indirectly, corruptly gives, offers, or
promises anything of value to any person, or offers or promises
such person to give anything of value to any other person or
entity, with intent to influence the testimony under oath or
affirmation of such first-mentioned person as a witness [in
federal trials or proceedings] or with intent to influence such
person to absent himself therefrom....
18 U.S.C. s 201(b)(3) (emphasis added). That section 201(b)(3) applies to federal prosecutors
while section 201(c)(2) does not, despite the similarities between the two sections, follows from
Nardone; the Government has no recognized interest in paying a witness to give untruthful
testimony and no absurdity would result in punishing a prosecutor who offers a witness money or
any other thing of value to obtain untruthful testimony.
ny.14 See Arana, 18 F. Supp. 2d at 719; Dunlap, 17 F. Supp.
2d at 1184-87. In addition, such an interpretation of section
201(c)(2) would end a centuries-old practice of allowing coop-
erating criminals to testify against their confederates in hopes
of receiving more lenient treatment. Faced with a ban on a
plea agreement in exchange for cooperative testimony, the
Government would face a near impossible task in trying to
convict those higher up in a criminal organization. See
generally Kastigar v. United States, 406 U.S. 441, 446 (1972)
(noting enactment of immunity statutes "reflects the impor-
tance 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").
The application of section 201(c)(2) to public officers also
produces an absurd conflict with statutory schemes prescrib-
ing reduced sentences and immunity for co-conspirators and
accomplices who provide testimony for the Government. See,
e.g., 18 U.S.C s 3521 (Witness Relocation and Protection
Act authorizing Attorney General to exchange things of value
for witness's agreement "to testify"); 18 U.S.C s 3553(e)
(reduction below statutory minimum sentence authorized in
exchange for "substantial assistance"); 18 U.S.C ss 6001-05
(federal immunity statutes); 28 U.S.C. s 994(n) (requiring
Sentencing Commission to provide for sentencing guideline
reductions); Gabourel, 9 F. Supp. 2d at 1247 (rejecting
original Singleton interpretation after examining "the larger
statutory context, its object and policy"). For instance, 18
U.S.C. s 6003, a provision of the Organized Crime Control
__________
14 As the Sixth Circuit correctly noted:
This result cannot be avoided by attempting to argue that the
language of the statute forbids only the use of the testimony
from a witness who has entered into the plea agreement, not
the plea agreement itself. Because a defendant who enters
into a plea agreement pursuant to Rule 11 must appear before
the court and enter his plea, the defendant's entry of that plea
is testimony.
Ware, 161 F.3d at 421 (citing Brady v. United States, 397 U.S. 742,
748 (1970)).
Act of 1970, authorizes a United States Attorney, with the
approval of the Attorney General or certain other federal
officials, to seek a court order granting immunity to a witness
whose testimony he considers necessary in the public interest.
Yet a grant of immunity pursuant to 18 U.S.C. s 6003 is
clearly "[some]thing of value" given "for or because of the
testimony under oath or affirmation," 18 U.S.C. s 201(c)(2).
See Ware, 161 F.3d at 423 (concluding that more recently
enacted statutes than section 201(c)(2) "specifically allow what
[Singleton's original] broad interpretation of the more gener-
ally applicable s 201(c)(2) would prohibit"). We therefore
conclude that application of section 201(c)(2) to federal prose-
cutors offering leniency in exchange for testimony works
obvious absurdities. For these reasons, we apply the Nar-
done canon "which provides that statutes do not apply to the
government or affect governmental rights unless the text
expressly includes the government," Nardone, 302 U.S. at
383, and interpret "[w]hoever" as used in 18 U.S.C.
s 201(c)(2) to be exclusive of the United States.
If we were to find the language of 18 U.S.C. s 201(c)(2)
ambiguous, which we do not, an examination of the relevant
legislative history would be appropriate. See Saadeh v. Far-
ouki, 107 F.3d 52, 57 (D.C. Cir. 1997) ("If the language is
plain on its face, courts do not ordinarily resort to legislative
history."). Cf. Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843 (1984) (If "the statute
is silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency's answer is
based on a permissible construction of the statute."). Noth-
ing in section 201(c)(2)'s legislative history indicates that the
Congress intended to apply the statute to the Government's
plea arrangements. Moreover, a sub silentio change of this
magnitude to the well-established prosecutorial practice of
granting leniency in exchange for testimony would be virtual-
ly unprecedented. Such a change ignores the rule of statuto-
ry construction that "[a] party contending that legislative
action changed settled law has the burden of showing that the
legislature intended such a change." Green v. Bock Laundry
Mach. Co., 490 U.S. 504, 521 (1989). Although House Report
No. 87-748, notes that section 201(h) (the predecessor of
section 201(c)(2)) "forbids offers of payments to a witness of
anything of value 'for or because of' testimony given or to be
given," the legislative history contains no indication that
section 201, originally enacted in 1962 by Pub. L. No. 87-849,
was designed to terminate the longstanding prosecutorial
prerogative of exchanging leniency for truthful testimony.
H.R. Rep. No. 87-748, at 16 (1961); see also S. Rep. No.
87-2213 (1961) (containing same language). The legislative
history of the 1970, 1986 and 1994 amendments to section 201
is also silent on the issue. Nor do those amendments address
the resulting contradiction in the statutory scheme if the
Congress had intended section 201(c)(2) to apply to the
Government. In particular, the 1986 and 1994 amendments
were passed after 18 U.S.C s 3553(e) (reduction below statu-
tory minimum sentence), 18 U.S.C s 6003 (immunity statute)
and 28 U.S.C. s 994(n) (requiring Sentencing Commission to
allow sentencing guideline reductions) but the potential con-
flict with these statutes was never addressed. As the Sixth
Circuit rightly concluded, "Clearly the explanation is that no
such conflict exists as s 201(c)(2) was never intended to apply
to the government." Ware, 161 F.3d at 423 (citing Pub. L.
No. 99-570 s 1007, 1986 U.S.C.C.A.N. (100 Stat. 32707) 5393;
Pub. L. No. 99-646 s 48, 1986 U.S.C.C.A.N (100 Stat. 3592)
6139).
Finally, even if federal prosecutors were subject to section
201(c)(2), that fact would not justify excluding Fierro's testi-
mony. The Congress prescribed a fine or imprisonment for a
violation of section 201(c)(2). "Where Congress has both
established a right and provided exclusive remedies for its
violation, we would 'encroach upon the prerogatives' of Con-
gress were we to authorize a remedy not provided for by
statute." Ware, 161 F.3d at 424 (quoting United States v.
Frazin, 780 F.2d 1461, 1466 (9th Cir.), cert. denied, 479 U.S.
844 (1986)); see United States v. Thompson, 936 F.2d 1249,
1251-52 (11th Cir. 1991) (court may not suppress testimony
for statutory violation unless Congress explicitly or implicitly
provided exclusion as a remedy for a violation), cert. denied,
502 U.S. 1075 (1992); see also United States v. Hensel, 699
F.2d 18, 29 (1st Cir. 1983) (exclusionary rule fashioned to
vindicate "specific, constitutionally protected rights"), cert.
denied, 461 U.S. 958 (1983); United States v. Harrington, 681
F.2d 612, 615 (9th Cir. 1982) ("There must be an exceptional
reason, typically the protection of a constitutional right, to
invoke the exclusionary rule."). Moreover, the Supreme
Court has acknowledged the "substantial" cost of exclusion
which "hamper[s]" the enforcement of valid laws and keeps
"concededly relevant and reliable evidence" from the jury.
United States v. Janis, 428 U.S. 433, 447 (1976); see also
United States v. Payner, 447 U.S. 727, 734 (1980) ("[U]nbend-
ing application of the exclusionary sanction ... would impede
unacceptably the truth-finding functions of judge and jury.
After all, it is the defendant, and not the constable, who
stands trial.").
III. Conclusion
For the foregoing reasons, we hold that 18 U.S.C.
s 201(c)(2) does not prohibit the Government from granting
leniency in exchange for a witness's truthful testimony. As
discussed earlier, Ramsey's other assignments of error are
without merit. Accordingly, the defendant's conviction and
sentence are
Affirmed.