United States v. Ramsey, Charles W.

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

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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

__________

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.