                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-26-1999

U.S. v. Hunte
Precedential or Non-Precedential:

Docket 97-1987




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Recommended Citation
"U.S. v. Hunte" (1999). 1999 Decisions. Paper 239.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/239


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Filed August 26, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1987

UNITED STATES OF AMERICA

v.

EARL PACKER HUNTE,
a/k/a Earl Packer,
a/k/a E

Earl Packer Hunte,
       Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 96-cr-00539-9)
District Judge: Honorable Harvey Bartle, III

Submitted Pursuant to Third Circuit LAR 34.1(a)
March 22, 1999

Before: BECKER, Chief Judge, COWEN, Circuit Judge,
and STAGG,* District Judge

(Filed: August 26, 1999)



_________________________________________________________________

*Honorable Tom Stagg, U.S. District Judge for the Western District of
Louisiana, sitting by designation.
OPINION OF THE COURT

COWEN, Circuit Judge

Defendant Earl Packer Hunte was convicted by a jury in
the United States District Court of the Eastern District of
Pennsylvania of one count of conspiracy to distribute and
to possess cocaine with intent to distribute, in violation of
21 U.S.C. S 846. The government's evidence against Hunte,
the sufficiency of which he does not challenge on appeal,
established that he was a member of a violent, large-scale
narcotics trafficking organization led by Darryl Coleman
and Terrence Gibbs. See generally United States v. Gibbs,
Slip. Op. at ___ (filed concurrently herewith). Specifically,
the evidence demonstrated that Hunte agreed to distribute
cocaine supplied by Gibbs, and that he agreed to carry out
acts of violence to protect the illegal enterprise.

Hunte's appeal raises a single issue. He contends that
the government violated the so-called "anti-gratuity
statute," 18 U.S.C. S 201(c)(2), by making promises of
leniency to several cooperating witnesses in exchange for
their truthful testimony against him.1 Relying exclusively on
the Tenth Circuit's now vacated opinion in United States v.
Singleton, 144 F.3d 1343 (10th Cir. 1998) (Singleton I),
rev'd en banc, 165 F.3d 1297 (10th Cir.) (Singleton II), cert.
denied, 119 S. Ct. 2371 (1999), Hunte argues that the
District Court erred in not suppressing the testimony of
these cooperating witnesses.

Because Hunte did not raise this issue in the District
Court, we would ordinarily review it only for plain error. See
Fed. R. Crim. P. 52(b). Due to the frequency with which this
argument has been raised in the courts of this Circuit since
_________________________________________________________________

1. Hunte has not provided us with the cooperating witnesses' plea
agreements. Based on the parties' description of those agreements, we
understand them to be of the usual sort. That is to say, the government
agreed to consider filing a motion under S 5K1.1 of the Sentencing
Guidelines in exchange for the witnesses' complete cooperation in the
investigation and prosecution of Hunte and others, including providing
testimony at trial. See Hunte Br. at 3; Gov. Br. at 2.

                               2
the issuance of Singleton I, however, we will take this
opportunity to address the issue squarely. We hold that
section 201(c)(2) does not prohibit the government from
promising leniency to cooperating witnesses in exchange for
truthful testimony. In so deciding, we align ourselves with
the en banc decision of the Tenth Circuit, as well as every
other circuit court that has considered the issue. See
Singleton II, 165 F.3d at 1298; accord United States v.
Stephenson, ___ F.3d ___, 1999 WL 437082, at *7 (2d Cir.
June 30, 1999); United States v. Lara, #6D 6D6D# F.3d ___, 1999
WL 431140, at *9 (1st Cir. June 30, 1999); United States v.
Condon, 170 F.3d 687, 688-89 (7th Cir. 1999); United
States v. Johnson, 169 F.3d 1092, 1097 (8th Cir. 1999);
United States v. Lowery, 166 F.3d 1119, 1122-24 (11th Cir.
1999); United States v. Ramsey, 165 F.3d 980, 987 (D.C.
Cir. 1999); United States v. Ware, 161 F.3d 414, 418 (6th
Cir. 1998), cert. denied, 119 S. Ct. 1348 (1999); United
States v. Haese, 162 F.3d 359, 366-68 (5th Cir. 1998), cert.
denied, ___ S. Ct. ___, 1999 WL 241837 (1999). Our
reasons for rejecting the holding of Singleton I are set forth
briefly below; given the numerous federal appellate
decisions addressing this issue over the last year, an
extended discussion would be redundant.

The criminal statute in question, 18 U.S.C. S 201(c)(2),
provides in pertinent part:

       Whoever ... directly or indirectly, gives, offers or
       promises anything of value to any person, for or
       because of the testimony under oath or affirmation
       given or to be given by such person as a witness upon
       a trial, hearing, or other proceeding, before any court
       ... authorized by the laws of the United States to hear
       evidence or take testimony ... shall be fined under this
       title or imprisoned for not more than two years, or
       both.

18 U.S.C. S 201(c)(2). The Tenth Circuit panel in Singleton
I concluded, inter alia, that the plain meaning of the term
"whoever" includes the government, and that, accordingly,
a government attorney's promise of leniency to a witness in
exchange for that witness' testimony violates S 201(c)(2).
144 F.3d at 1345-48. We disagree.

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In Nardone v. United States, 302 U.S. 379 (1937), the
Supreme Court described a canon of statutory construction
that provides that a statute does not apply to the
government or affect governmental rights unless the text of
the statute expressly includes the government. Id. at 383;
see also The Dollar Savings Bank v. United States, 86 U.S.
(19 Wall) 227, 229 (1873) ("It is a familiar principle that the
King is not bound by any act of Parliament unless he be
named therein by special and particular words.") The
Nardone Court stated that the canon has been applied in
two categories of cases. "The first is where an act, if not so
limited, would deprive the sovereign of a recognized or
established prerogative title or interest." Id. at 383. The
second category is "where a reading which would include
such [government] officers would work obvious absurdity."
Id. at 384. We agree with the courts that have held that
this type of case -- where the government has agreed to
move for leniency in exchange for testimony -- falls within
both categories described in Nardone. See Ramsey, 165
F.3d at 988-90; Singleton II, 165 F.3d at 1300-01; Ware,
161 F.3d at 419.

First, construing section 201(c)(2) to preclude the
government from offering leniency in exchange for truthful
testimony would deprive the sovereign of an established
and recognized prerogative. "The 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 . . .." Ramsey, 165 F.3d at 988
(citing The Whisky Cases, 99 U.S. 594 (1878)); see also
United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th
Cir. 1987) ("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."). We
are not persuaded by the Singleton I panel's claim that
section 201(c)(2) is removed from this category because the
statute only limits the practices of the government's agents,
not the sovereign itself. 144 F.3d at 1345-46.2 If section
_________________________________________________________________

2. In so concluding, the Singleton I court relied on the Supreme Court's
statement in Nardone that "[t]he rule of exclusion of the sovereign is
less

                               4
201(c)(2) did indeed prohibit promises of leniency in
exchange for testimony, it is surely the government's
interests that would be affected, not those of its
representatives. See Ware, 161 F.3d at 421 ("When an
assistant United States Attorney (AUSA) enters into a plea
agreement with a defendant, that plea agreement is
between the United States government and the
defendant.").

Second, the application of section 201(c)(2) to the
government in cases such as this would work an obvious
absurdity. As many courts have observed, interpreting
section 201(c)(2) to forbid promises of leniency in exchange
for truthful testimony would "preclude enforcement or limit
the efficacy of the terms of several more recent -- and more
specific -- statutes [or Rules or Guidelines enacted
purusant to statute], all of which presuppose the potential
use of testimony in exchange for non-prosecution
agreements, leniency recommendations, and/or other
valuable promises." United States v. Lara, 1999 WL
431140, at *9 (1st Cir. June 30, 1999); see also Ramsey,
165 F.3d at 990; Singleton II, 165 F.3d at 1305-06.
Numerous statutes adopted after the anti-gratuity law, for
example, authorize sentence reductions for defendants who
have provided "substantial assistance" in the investigation
or prosecution of others. 28 U.S.C. S 994(n) (instructing the
United States Sentencing Commission to ensure that
Guidelines "take into account 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)
(authorizing court to impose a sentence below a statutory
minimum upon motion of the government "to reflect a
defendant's substantial assistance in the investigation or
prosecution of another person"); U.S.S.G. S 5K1.1 (allowing
government motion for a sentence reduction below the
applicable sentencing range when a defendant provides
substantial assistance); Fed. R. Crim. P. 35(b) (allowing
government motion for a sentence reduction based on post-
_________________________________________________________________

stringently applied where the operation of law is upon the agents or
servants of the government rather than on the sovereign itself." Nardone,
302 U.S. at 383 (footnote omitted).

                               5
sentencing substantial assistance). It is plain to us that the
"substantial assistance" referred to in these statutes
includes providing testimony against others. See U.S.S.G.
S 5K1.1(a)(2) (in deciding the extent of a"substantial
assistance" sentencing departure, court may consider "the
truthfulness, completeness, and reliability of any
information or testimony provided by the defendant")
(emphasis added). Accordingly, adopting the holding of
Singleton I would create an "absurd conflict," Ramsey, 165
F.3d at 990, between section 201(c)(2) and the above-cited
statutes.3

Finally, we reject the holding of Singleton I because it is
completely implausible to us that Congress, in enacting
section 201(c)(2), intended to sub silentio overrule the
government's long-standing practice of entering into
leniency-for-testimony agreements. Ramsey, 165 F.3d at
991. As the en banc Tenth Circuit explained, "we must
presume if Congress had intended that section 201(c)(2)
overturn this aspect of American legal culture, it would
have done so in clear, unmistakable, and unarguable
language." Singleton II, 165 F.3d at 1301; cf. Green v. Bock
Laundry Machine Co., 490 U.S. 504, 521 (1989) ("A party
contending that legislative action changed settled law has
the burden of showing that the legislature intended such a
change."). There is nothing in the statute that even
approaches the type of clear statement that we would
expect if Congress had intended the result reached by the
Singleton I panel. Nor is there any statement in the relevant
legislative history which would support such a conclusion.
Ramsey, 165 F.3d at 991.

For the foregoing reasons, the District Court did not
commit any error -- plain or otherwise -- in admitting the
testimony of the cooperating witnesses against Hunte.4
Accordingly, Hunte's conviction will be affirmed.
_________________________________________________________________

3. Other courts have also observed that the Singleton I panel's holding
would create a conflict with the Witness Relocation and Protection Act,
18 U.S.C. S 3521 and the federal immunity statutes, 18 U.S.C. SS 6001-
05. See, e.g., Ramsey, 165 F.3d at 990.

4. We note that this case presents only the question of whether section
201(c)(2) prohibits the government from making promises of leniency in
exchange for testimony. It does not present the situation, for example, in
which a witness has received money from the government, arguably in
exchange for testimony. See, e.g., United States v. Medina, 41 F. Supp.
2d 38 (D. Mass. 1999). We have no occasion here to consider the
applicability, if any, of section 201(c)(2) in such a case.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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