                              UNITED STATES COURT OF APPEALS
                                          Tenth Circuit
                               Byron White United States Courthouse
                                        1823 Stout Street
                                     Denver, Colorado 80294
                                         (303) 844-3157
Patrick J. Fisher, Jr.                                                             Elisabeth A. Shumaker
        Clerk                                                                       Chief Deputy Clerk

                                              August 16, 1999


        TO:      ALL RECIPIENTS OF THE ORDER AND JUDGMENT

        RE:      98-3254, United States v. Culp
                 Filed on August 6, 1999

               The order and judgment filed in this matter omitted the name of the authoring judge.
        Senior Circuit Judge Robert H. McWilliams entered the decision for the court.

                 Please make the correction to your copy of the decision.

                                                          Sincerely,

                                                          Patrick Fisher, Clerk of Court


                                                          By:    Keith Nelson
                                                                 Deputy Clerk
                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                                                                             AUG 6 1999
                        UNITED STATES COURT OF APPEALS
                                                                        PATRICK FISHER
                                   TENTH CIRCUIT                                 Clerk



 UNITED STATES,

          Plaintiff-Appellee,
 v.                                                          No. 98-3254
                                                        (D.C. No. 97-40005-03)
 JAMES CULP,                                              (District of Kansas)

          Defendant-Appellant.


                                ORDER AND JUDGMENT*


Before ANDERSON, Circuit Judge, LUCERO, Circuit Judge, and McWILLIAMS,
Senior Circuit Judge.


      In a one-count indictment filed in the United States District Court for the District

of Kansas, James Culp and three others were charged with conspiring with each other and

with others, some known and others unknown to the Grand Jury, to distribute cocaine in

violation of 21 U.S.C. § 846, with reference to 21 U.S.C. § 841(a)(1). One of the four

defendants entered into a plea agreement with the government and later testified as a

government witness at Culp’s trial. The remaining three defendants were jointly tried by




      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3
a jury. The jury convicted Culp and he was sentenced to 151 months imprisonment.1

Culp appeals his conviction and sentence.

       On appeal, counsel raises but one issue, contending that Culp’s conviction and

sentence should be reversed because the government, at trial, called ten witnesses,

including co-conspirators with Culp, and that these witnesses had been promised

leniency, in one form or another, in exchange for testifying against Culp. Counsel

concedes that he raised no objection to the testimony of these co-conspirators in the trial

court, but claims that such represents “plain error,” which may be raised on appeal even

though not raised in the trial court, citing Fed. R. Crim. P. 52(b). See, e.g., United States

v. Janusz, 135 F.3d 1319, 1322 (10th Cir. 1998).

       Counsel’s argument that the so-called “anti-bribery statute,” 18 U.S.C. § 201(c)(2),

makes it unlawful for a prosecutor to promise leniency to a cooperating witness in

exchange for his or her testimony is based on a panel opinion of the court filed on July 1,

1998, but vacated by the active court and rehearing granted en banc on July 10, 1998.

United States v. Singleton, 144 F.3d 1343 (10th Cir.1998), vacated and reh’g en banc

granted, id. at 1361. The instant trial occurred before Singleton. In his brief, counsel

recognized that rehearing en banc had been granted in Singleton but, at that point in time,

had not been reheard.

       1
        One of Culp’s co-defendants, Shawn Battle, was also convicted and he appealed
his conviction and sentence. See our No. 98-3246, wherein Battle’s conviction and
sentence was affirmed this date. The remaining defendant, Richardo Clark, was
acquitted.

                                             -2-
       On rehearing en banc, this court on January 8, 1999 held that the anti-bribery

statute, 18 U.S.C. § 201(c)(2), did not apply to the United States acting in its sovereign

capacity and accordingly did not include the United States Attorney’s office, and thus did

not prohibit the government offering an accomplice leniency in exchange for truthful

testimony. United States v. Singleton, 165 F.3d 1297 (10th Cir.), cert. denied,     U.S.     ,

119 S.Ct. 2371 (1999).

       Judgment affirmed.

                                           ENTERED FOR THE COURT,


                                           Robert H. McWilliams
                                           Senior Circuit Judge




                                            -3-
