United States v. Robert Ware, Jr.

WELLFORD, Circuit Judge,

concurring.

I concur with the majority view that we should affirm the convictions of defendant Ware. My concurrence deals with the issue addressed in United States v. Singleton, 144 F.3d 1343 (10th Cir.1998), vacated for en banc review. The Tenth Circuit in Singleton interpreted 18 U.S.C. § 201 (c)(2), for the first time, to make it a crime for a federal prosecutor to enter into a plea agreement wherein the government offers leniency to a witness in exchange for his or her testimony, even though the agreement provides that such testimony must be truthful under penalties of perjury. Id. at 1344 . In addition, the court in Singleton determined that the remedy for this statutory violation was to hold that such testimony was inadmissible.

In reaching that conclusion, the court in Singleton attempted to distinguish three cases discussing some aspect of the issue, and it concluded that none were determinative. See United States v. Isaacs, 347 F.Supp. 763 (N.D.Ill.1972); Giglio v. United States, 405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972), and United States v. Blanton, 700 F.2d 298, 310-11 (6th Cir.), reh’d in part, 719 F.2d 815 (6th Cir.1983) (in order of discussion in Singleton). In addition, the Singleton court rejected two other cases decided by the Eleventh Circuit which held that § 201(c) did not apply to the procurement of truthful testimony. Golden Door Jewelry Creations v. Lloyd’s Underwriters, 117 F.3d 1328 , 1335 n. 2 (11th Cir.1997) (citing Moody); United States v. Moody, 977 F.2d 1420 (11th Cir.1992). In my view, Blanton, 1 Giglio, Moody, and Golden Door are pertinent to the issue before us. See United States v. Reid, 19 F.Supp.2d 534 (E.D.Va.1998).

In Blanton, the defendant alleged that the government violated § 201(c) by giving a witness the assurance that his liquor license would not be revoked by the Alcoholic Beverage Commission (“ABC”) in exchange for his testimony. The defendant argued that persuading the ABC not to revoke the witness’ *426 liquor license was “a thing of value” given by the government in violation of the statute. This court disagreed, finding that the ABC’s decision not to revoke the witness’ license was within its discretion and was merely a preservation of the status quo. Therefore, this conduct did not violate § 201(h), the precursor of § 201(e).

The Supreme Court Giglio held that “a promise of lenity made to a key witness in return for his testimony must be revealed to the defendant.” Giglio, 405 U.S. at 153-54 , 92 S.Ct. 763 . The Court made no comment about the propriety of the government’s promise of lenity. Thus, the court in Single-, ton determined that Giglio was not disposi-tive of the issue before it. Singleton, 144 F.3d at 1356 .

The Eleventh Circuit in Golden Door interpreted its prior decision in Moody as explicitly standing for the proposition that § 201(c) applies only to false testimony. Golden Door, 117 F.3d at 1335 n. 2. Specifically, the court relied on the statement in Moody that “obviously [§ 201(c) ] proscribes a bribe for false testimony; persons of ordinary intelligence would come to no other conclusion.” Moody, 977 F.2d at 1424-25 , quoted in Singleton, 144 F.3d at 1358 . The Singleton court rejected the idea that Moody supported the holding in Golden Door, because the court in Moody had merely disposed of a vagueness/overbreadth challenge to the statute by concluding that it obviously applied to false testimony. What the court did not hold, according to Singleton , was that the statute would not apply in a case involving truthful testimony. Singleton, 144 F.3d at 1358 . Thus, the Eleventh Circuit’s position was not persuasive to the Singleton court under those circumstances.

All of those cases, save Giglio , dealt with the implication and meaning of 18 U.S.C. § 201 (c)(2), but in a different fashion than did Singleton . I do not believe that statute is applicable to the government’s conduct in this case because it was not akin to bribing or seeking corruptly to influence the witness nor intended to corrupt the trial process. The conduct was fully revealed to the adversary and the jury which was to weigh the credibility of the witness in light of any understanding with the government and the witness’ promise to tell the truth.

Another case addressing the distinction between giving something of value for false testimony as opposed to truthful testimony is United States v. Revis, 22 F.Supp.2d 1242 (M.D.Pa.1998). The court in Revis considered the defendant’s § 201(c)(2) argument and determined that “the promise to testify truthfully ... was not consideration and was not given ‘for’ any promise by the United States Attorney.” Id. at 1256. Rather, the court held, it was the witness’ pre-existing duty to testify. I agree with this rationale. This is one basis for my disagreement with Singleton , that promising truthful testimony was not consideration for the contract since the witness committed to do only that which he would otherwise be called upon to do — -to testify truthfully rather than falsely.

In addition, I disagree with the conclusion in Singleton that § 201(c)(2) “is to be broadly construed to further its legislative purpose of deterring corruption.” Id. at 1345. Singleton cites in support of that principle only United States v. Hernandez, 731 F.2d 1147, 1149 (5th Cir.1984), and United States v. Evans, 572 F.2d 455, 480 (5th Cir.1978). Hernandez , in turn, cites only Evans as authority. 2 Those cases offer no persuasive reason to depart from the general rule that criminal statutes are to be construed narrowly, rather than broadly, in order to give the benefit of any ambiguity to the accused. See United States v. Conners, 606 F.2d 269, 272 (10th Cir.1979) (reasoning that “[cjriminal statutes must be strictly construed with ambiguities resolved in favor of the accused.”). The Supreme Court has explained the reasoning behind this rule of construction:

We have traditionally exercised restraint in assessing the reach of a federal criminal *427 statute, both out of deference to the prerogatives of Congress, Dowling v. United States, 473 U.S. 207 , 105 S.Ct. 3127 , 87 L.Ed.2d 152 (1985), and out of concern that “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed,” McBoyle v. United States, 283 U.S. 25, 27 , 51 S.Ct. 340 , 75 L.Ed. 816 (1931).

United States v. Aguilar, 515 U.S. 593, 600 , 115 S.Ct. 2357 , 132 L.Ed.2d 520 (1995); see United States v. Feroni, 655 F.2d 707, 711 (6th Cir.1981) (holding that the principle of strict construction of criminal statutes compels a narrow construction of the criminal statute at issue).

Finally, it seems to me that the Singleton panel interpretation, if followed literally, would make the payment of costs, expenses, deposition fees, and any involvement given by any party to a witness, including the United States, “for or because of such testimony” illegal. Surely this was not the intent of the Congress. Such a result would constitute an absurdity, and I am in agreement with the majority opinion in affirming the jury verdict in this case.

Thus, I join in rejecting the Singleton panel decision for the additional reasons indicated.

. At least one authority cites Blanton in support of its decision to reject the Singleton § 201(c)(2) rationale, stating "the Government cannot be deemed to violate Section 201(c)(2) when it enters into a Rule 11 agreement based upon the defendant’s cooperation because it does nothing more than request or recommend that the court take a certain action.” United States v. Arana, 18 F.Supp.2d 715 (E.D.Mich.1998).

. Evans involved a different provision entirely of § 201 dealing with bribery of a government official to influence his actions. Evans made reference to a number of similar cases, some of which discussed the broad objectives of Congress and the broad scope of this statute designed to discourage this type of corruption. I believe the Singleton panel decision and Hernandez confused congressional intent to legislate broadly to cover bribery of government officials with the judicial interpretation to be given a criminal statute.