v.                )

                             ) CR. NO. 93-097-01 (HHG)

xxxxxxx R. xxxxxxx,             )

              Defendant.    )



    Defendant, xxxxxxx R. xxxxxxx, moves this Court pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the sentence he received in this case.

    In support of his motion, Mr. xxxxxxx states as follows:

    1.  This motion is based upon all the files, records, and proceedings in this case.

    2.  In March 1993, Mr. xxxxxxx and other defendants were charged in a 26-count indictment with various violations of the federal drug statutes and related charges, including operation of a continuing criminal enterprise (“CCE”), CCE murder, RICO conspiracy, and several armed offenses. The final redacted indictment charged Mr. xxxxxxx in 10 of the 20 counts with conspiracy to distribute and possess with the intent to distribute cocaine base, CCE, CCE murder, first degree murder while armed, RICO conspiracy, three individual counts of drug distribution, use and carrying of a firearm in relation to a drug trafficking offense, and possession of a firearm during a crime of violence.

    3.  A jury trial of Mr. xxxxxxx and four co-defendants began on November 8, 1993. One co-defendant plead guilty during the trial to drug conspiracy and assault charges. On January 28, 1994, the case went to the jury. Thereafter, on February 16, 1994, the jury returned partial verdicts, finding Mr. xxxxxxx guilty of conspiracy to distribute cocaine base, RICO conspiracy, and three individual counts of drug distribution. After continued deliberations, the jury was unable to reach consensus on any of the other charges and the district court declared a mistrial on the remaining counts.

    4.  On May 11, 1994, the court sentenced Mr. xxxxxxx to life imprisonment on the drug conspiracy count, to run concurrently with a life sentence on the RICO conspiracy count and with 240- and 480- month sentences on the individual drug distribution counts.     5.  On June 27, 1997, the court of appeals affirmed Mr. xxxxxxx’s conviction. United States v. xxxxxxx, 116 F.3d 903 (D.C. Cir. 1997). Thereafter, on November 3, 1997, the Supreme Court denied Mr. xxxxxxx’s petition for a writ of certiorari. xxxxxxx v. United States, 118 S. Ct. 390 (1997).

    6.  There have been no previous post-conviction petitions, applications, motions, or proceedings filed or maintained by Mr. xxxxxxx in this or any other federal court with respect to the judgment entered in this case.

    7.  For the reasons set forth in the incorporated memorandum of facts and law, Mr. xxxxxxx prays that this Court set aside his conviction and sentence in this case.



    The government presented evidence at trial to establish that Mr. xxxxxxx and various co-conspirators distributed cocaine base in the area of First and Thomas Streets, N.W., from early 1988 until March 1993. The prosecution’s evidence against Mr. xxxxxxx centered around the testimony of seven alleged co-conspirators: John xxxxxxx, John xxxxxxx, Dequette xxxxxxx, Anthony xxxxxxx, Michael xxxxxxx, David xxxxxxx, and Rico xxxxxxx. Each of these cooperating witnesses entered into a plea agreement with the government. As part of the agreement, the government promised some form of leniency to each of them in return for their testimony against Mr. xxxxxxx and his co-defendants.

     Although there was some variation in the terms of the various plea agreements, the standard agreement provided that in return for the witness’s cooperation and testimony, the government agreed to (1) permit the witness to plead guilty to a reduced offense; (2) bring to the sentencing court’s attention the nature and extent of the witness’s cooperation; (3) file a motion under U.S.S.G.

§ 5K 1.1 or 18 U.S.C. § 3553(e) if the government, in its sole discretion, determined that the witness’s cooperation amounted to “substantial assistance;” and (4) not charge the witness with any other nonviolent offenses committed prior to the execution of the plea agreement. (See, e.g., 11/17/93 Tr. 1017-1023, 1177-1181, 1206-09 (xxxxxxx); 11/29/93 Tr. 1963-67, 1991-99 (xxxxxxx); 12/7/93 Tr. 2699-2705 (xxxxxxx); 12/15/93 Tr. 3462-63 (xxxxxxx); 1/10/94 Tr. 4561-62 (xxxxxxx); 1/12/94 Tr. 4964-66 (xxxxxxx); 1/13/94 Tr.5069-5071 (xxxxxxx).)

    This motion, filed pursuant to 28 U.S.C. § 2255, seeks relief from Mr. xxxxxxx’s conviction in this case on the grounds that the government violated 18 U.S.C. § 201(c)(2), which prohibits giving, offering, or promising anything of value to a witness for or because of his testimony, by promising leniency to the principal prosecution witnesses in this case in return for their testimony against Mr. xxxxxxx. In making this argument, Mr. xxxxxxx adopts much of the rationale of the original panel decision in United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), vacated and reh’g en banc granted, 144 F.3d 1361 (10th Cir. July 10, 1998).

     Although Mr. xxxxxxx is aware that the Singleton panel decision has been vacated, at least two other district courts have reached similar results and suppressed testimony of government witnesses that was procured in violation of § 201(c)(2). See United States v. Fraguela, No. 96-0339, 1998 WL 560352 (E. D. La. Aug. 27, 1998); United States v. Lowery, No. 97-368, 1998 WL 493818 (Aug. 4, 1998). Mr. xxxxxxx also is aware that a number of other district courts have declined to follow the Singleton panel decision. There are no reported decisions concerning the Singleton issue in this district. Footnote For the reasons set forth in this memorandum, the tainted testimony of the cooperating government witnesses should be ordered suppressed and Mr. xxxxxxx’s conviction and sentence should be vacated.



    The prosecutors in Mr. xxxxxxx’s case promised various forms of leniency to their key witnesses in return for their testimony. By doing so, the prosecutors violated 18 U.S.C. § 201(c)(2), which prohibits giving, offering, or promising anything of value in exchange for testimony. As the Singleton panel reasoned, the plain language, purpose, and structure of § 201(c)(2) dictate that the statutory proscription apply to prosecutors’ activities in bargaining for testimony from cooperating witnesses. 144 F.3d at 1345-47 (“if justice is perverted when a criminal defendant seeks to buy testimony from a witness, it is no less perverted than when the government does so.”)

    The essence of the Singleton panel’s decision is that federal prosecutors, like defense attorneys, criminal defendants, and anyone else, are not permitted to purchase a witness’s testimony through promises of leniency or other favorable treatment. However, that is exactly what happened in the instant case. By expressly promising leniency to the seven principal witnesses against Mr. xxxxxxx, the government essentially bought their testimony. Without this tainted testimony, the government’s case against Mr. xxxxxxx would have crumbled. Because the prosecution used illegally-obtained testimony to convict Mr. xxxxxxx, his conviction in this case cannot stand.

    A.  The Plain Language of § 201(c)(2) Clearly Prohibits the Prosecutors from Promising Leniency in Return for a

Witness’s Testimony

    The language of § 201(c)(2) is plain and clear. It provides in pertinent part that:

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 2 years, or both.

18 U.S.C. 201(c)(2). Section 201 is to be broadly construed to further its legislative purpose of deterring corruption. See United States v. Hernandez, 731 F.2d 1147, 1149 (5th Cir. 1984); United States v. Evans, 572 F.2d 455, 480 (5th Cir.), cert. denied, 439 U.S. 870, (1978). In a recent case, the Supreme Court rejected “the broad proposition that criminal statutes do not have to be read as broadly as they are written[.]” Brogan v. United States, 118 S. Ct. 805, 809 (1998) (holding that plain language of 18 U.S.C. § 1001 does not provide for “exculpatory no” doctrine).

    Section 201(c)(2) contains broad language. For example, “whoever” does the prohibitive acts commits a crime. The term “whoever” means “no matter who.” THE AMERICAN HERITAGE DICTIONARY 1380 (2d ed. 1985). Thus, the statute applies to anyone. Moreover, it proscribes the giving, offering, or promising of “anything of value,” without limitation. Thus, the plain meaning of § 201(c)(2) clearly prohibits anyone from promising something of value in exchange for testimony.

    1.  Section 201(c)(2) Applies to Federal Prosecutors

    Although the class to whom the statute applies appears to be unlimited, the Supreme Court has recognized a limited rule of statutory construction which provides that a statute does not apply to the government unless the text specifically includes the government. See Nardone v. United States, 302 U.S. 379, 383 (1937). However, the canon only applies to statutes which would deprive the sovereign of “a recognized or established prerogative title or interest[,]” or to statutes which would create an “obvious absurdity” if applied to the government. Id. at 383. Section 201(c)(2) does not fall within either category of exclusionary statutes.

    First, there is no indication that Congress intended that only prosecutors could exchange gratuities for their witnesses’ testimony. Therefore, § 201(c)(2) does not operate to divest the government of a legitimate prerogative or interest. Even assuming that the government has a recognized interest in securing the cooperation of witnesses, the prohibitions of § 201(c)(2)operate on individual prosecutors rather than on the government itself. Under these circumstances, the rule of exclusion of the sovereign is “less stringently applied.” Id. Even if the statute infringes upon an established government prerogative, if the statute’s purpose is to prevent fraud, injury, or wrong, the government is subject to its provisions. Id. at 382-84. (holding that statutory term “anyone” in federal wiretap statute applied to federal agents). Because the purpose of § 201(c)(2) is to prevent the wrongful procurement of testimony, the statutory proscription must apply to the government.

    Moreover, applying this statute to federal prosecutors does not work an “obvious absurdity.” To the contrary, failing to apply it to prosecutors encourages inherently unreliable testimony by government witnesses induced by promises of leniency. Thus, two courts, in addition to the Singleton panel, have found that applying § 201(c)(2) to prosecutors “would lead to greater reliability in our judicial system[,]” and “clearly preserve the integrity of the judicial process.” Fraguela, 1998 WL 560352, at *1; Lowery, 1998 WL 493818, at *4.

    Finally, as the Singleton panel noted, it is particularly appropriate to apply § 201(c)(2) to federal prosecutors because they do represent the sovereign. 144 F.3d at 1346-48. Since the government has a significant interest in the fair and just administration of its judicial system, applying § 201(c)(2) to the government’s legal representatives advances that interest. Furthermore, as the sovereign’s representatives, prosecutors have a recognized responsibility to see “that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). Accordingly, federal prosecutors clearly are subject to the provisions of

§ 201(c)(2).

    2.  The Statute’s “anything of value” and “for or because of” Language Includes a Prosecutor’s Promise of Leniency in

Exchange for Testimony


    Section 201(c)(2) proscribes the promising of “anything of value” ... “for or because of” a witness’s testimony. The “for of because of” language does not require a quid pro quo relation between the promise and the testimony. See United States v. Sun- Diamond Growers of California, 138 F.3d 961, 966 (D.C. Cir. 1998)(construing “for or because of” language in § 201(c)(1)). Thus, the gratuity and the testimony need not each motivate the other as “[t]he relation may be simply one of reward.” Id. at 966. Under the “for or because of” language, the maker of the promise must intend either to reward a past act or to increase the likelihood of some future act. Id. (citing United States v. Brewster, 506 F.2d 62, 71-74 (D.C. Cir. 1974)). Because the record in the instant case establishes a mutuality between the promises of leniency and the cooperating witnesses’ testimony, the relation is even stronger than that required by the “for or because of” language in § 201(c)(2).

    The term “anything of value” is not defined in the statute. Therefore, it must be interpreted according to its ordinary meaning. See Russello v. United States, 464 U.S. 16, 21 (1983). The everyday meaning of “value” means anything of worth, utility, or importance. Courts have held that value is not solely measured by monetary worth and is not limited to intangibles. See, e.g., United States v. Nilsen, 967 F.2d 539, 542-43 (11th Cir. 1992)(construing 18 U.S.C. § 876), cert. denied, 507 U.S. 1034 (1993); United States v. Williams, 705 F.2d 603, 622-23 (2d Cir.), cert. denied, 464 U.S. 1007 (1983). Congress did not limit or modify the phrase “anything of value” and courts have broadly construed the language to carry out the statutory purpose of protecting testimony from undue influence. Williams 705 F.2d at 622-23. Thus, the focus is upon the value a witness subjectively attaches to the gratuity rather than to the item’s actual value. Id.

    In the plea agreements in this case, the prosecutors promised to allow witnesses to plead guilty to reduced charges, to advise the sentencing court of the witnesses’ cooperation, and to consider filing a substantial assistance motion so that the sentencing court could impose a lesser sentence or reduce an existing sentence. Certainly, the witnesses considered these promises to be extremely valuable. Thus, there can be no doubt that the promised leniency constitutes a “thing of value” under § 201(c)(2).

    B.  The Structure and Purpose of § 201(c)(2) Support Its

Plain Meaning Construction

    Section 201 includes both bribery and gratuity prohibitions. Unlike the bribery provisions in § 201(b), which require a corrupt mind on the part of the giver and an intent to influence the receiver’s action, the gratuity prohibitions in § 201(c)(2) contain no requirements of corruptness or intent to influence the testimony. See Brewster, 506 F.2d at 71-72. Thus, a prosecutor, even one without a corrupt motive or intent to influence the testimony, who offers leniency in exchange for that testimony, violates the statute.

    The purpose of § 201(c)(2) is consistent with its broad language and structure. Congress enacted the predecessor statute (§ 201(h)) to prohibit giving or receiving anything of value by “witnesses ‘for’ or ‘because of’ . . . testimony . . .” H.R. Rep. No. 87-748, at 16 (1961). Congress recognized that such exchanges had “the appearance of evil and the capacity of serving as a cover for evil.” Id. at 19. This Court, among many others, has recognized that, “few, if any, factors are more likely to induce an accused to testify, possibly falsely, against another, than the expectation of prosecutorial or sentencing leniency.” United States v. Iverson, 637 F.2d 799, 803 (D.C. Cir. 1980) (Greene, J., sitting by designation)(footnote omitted). See also United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987)(“It is difficult to imagine a greater motivation to lie than the inducement of a reduced sentence...”), cert. denied, 484 U.S. 1026 (1988). Thus, § 201(c)(2) prohibits promises of leniency in exchange for testimony because “such inducements have the inherent tendency to encourage tainted testimony and to induce a witness to say the testimony in a manner pleasing to the inducer.” Fraguela, 1998 WL 560352, at *1. Construing the statute in such a way as to effectuate its broad language confirms Congress’s intent to prohibit purchased testimony.

    Moreover, applying § 201(c)(2) to prosecutors’ promises of leniency helps to balance the ever-escalating inequalities between the prosecutor and the individual criminal defendant. As this Court has recognized, prosecutorial power has increased exponentially as mandatory minimum statutes and federal sentencing guidelines have shifted away from the judiciary to the prosecution the authority to determine the ultimate sentence in a case. See United States v. Shepherd, 857 F.Supp. 105, 111-12, (D.D.C. 1994)(“[u]nder the current system, prosecutors now have the virtually unreviewable power to manipulate a defendant’s sentence (1) through charging decisions and (2) through the grant and denial of departure recommendations.”) (footnotes omitted), remanded, 102 F.3d 558 (D.C. Cir. 1996); United States v. Roberts, 726 F.Supp. 1359, 1365-67 (D.C. Cir. 1989)(“under the new sentencing scheme, prosecutors are not only performing their customary responsibilities of filing the charges and presenting the government’s side in the course of criminal trials; their power over sentencing, as discussed above, often effectively constitutes them also as the authority which determines punishment. This change has in substantial measure eliminated the safety valve in terms of fairness and due process of an impartial judge exercising whatever sentencing discretion any particular criminal statute allows.”), rev.’d on other grounds, 964 F.2d 1186 (D.C. Cir.)(en banc), cert. denied, 506 U.S. 977 (1992). Since § 201(c)(2) clearly applies to the defense and prohibits it from offering any inducement to a witness in exchange for testimony, to hold that the statute is inapplicable to prosecutors gives them yet another unfair advantage. See Fraguela, 1998 WL 560352 at *2. Applying

§ 201(c)(2) to prosecutors makes the playing field of criminal trials a little less uneven and, therefore, enhances the integrity of the judicial process. C. Section 201(c)(2) Does Not Conflict With Substantial

         Assistance Sentencing Provisions or Immunity Statutes

    A number of statutes and rules directly or indirectly authorize federal prosecutors to confer benefits on persons who provide “substantial assistance” in the investigation or prosecution of crimes. See, e.g., 18 U.S.C. § 3553(e) (authorizing sentencing court to impose sentence below statutory minimum to reflect defendant’s “substantial assistance”); 28 U.S.C.

§ 994(n)(instructing United States Sentencing Commission to ensure that sentencing guidelines provide for lower sentences to take into account defendant’s “substantial assistance”); U.S.S.G. § 5K1.1 (providing that government may move for a downward departure from guidelines range if defendant provides “substantial assistance”); FED. R. CRIM. P. 35(b) (authorizing the court on motion of government to reduce sentence to reflect defendant’s subsequent “substantial assistance”). Notably, “testimony” is not mentioned in any of those statutes or rules. More important, none of them authorizes prosecutors to promise leniency in exchange for a witness’s testimony.

    Although the provisions authorize something of value to be given for a defendant’s “substantial assistance,” none of the provisions requires that substantial assistance include a defendant’s testimony. In fact, there are many ways in which a defendant may provide substantial assistance in the investigation and prosecution of a case without ever testifying in it. Thus,

§ 201(c)(2) does not prohibit a promise of leniency for all forms of substantial assistance other than testimony and it does not preclude a witness from testifying at trial. Instead, the statute only prevents prosecutors from purchasing testimony. Therefore,

§ 201(c)(2) and the substantial assistance provisions may be reconciled to allow rewards for all types of substantial assistance except a defendant’s testimony. See Connecticut National Bank v. Germain, 503 U.S. 249, 253 (1992)(where two statutes are not positively repugnant, courts must give effect to both).

    Prosecutors also may secure the testimony of witnesses by invoking the federal immunity statutes without running afoul of

§ 201(c)(2). See 18 U.S.C. § 6001-6005. Under these statutes, witnesses may be compelled by the court to testify without losing the benefit of their Fifth Amendment protection. The witness does not receive any independent benefit for the involuntary relinquishment of his Fifth Amendment privilege. Thus, prosecutors are not required to offer immunity in exchange for testimony as part of the plea bargain. Because immunity statutes operate to compel witnesses to testify without necessarily receiving “anything of value” from prosecutors, the statutes do not conflict with § 201(c)(2).

    D.  The Testimony of the Principal Government Witnesses

         Against Mr. xxxxxxx Must be Suppressed Because It was

         Obtained in Violation of § 201(c)(2)


    The heart of the government’s case against Mr. xxxxxxx consisted of the testimony of seven alleged co-conspirators. Each of these witnesses testified as part of a plea agreement in which prosecutors promised some form of leniency in return for their testimony. By specifically exchanging leniency for testimony, the prosecutors clearly violated § 201(c)(2). Therefore, the appropriate remedy for this violation is suppression of the tainted testimony against Mr. xxxxxxx. The Singleton panel applied this remedy. 144 F.3d at 1359 (“Excluding that tainted testimony removes the sole purpose of the unlawful conduct and leaves no incentive to violate § 201(c)(2).”) See also Fraguela, 1998 WL 560352, at *2 (granting new trial where pivotal testimony against defendant was acquired through violation of § 201(c)(2)); Lowery, 1998 WL 493818, at 9-12 (suppressing testimony obtained in violation of § 201(c)(2) under exclusionary rule and FED. R. EVID. 403).

    Suppression of the testimony obtained in violation of

§ 201(c)(2) is the appropriate remedy to deter prosecutors from violating the statute. See United States v. Peltier, 422 U.S. 531, 542 (1975)(suppression of evidence is rule fashioned by courts to deter official misconduct). The rule has been applied to statutory, as well as constitutional violations. See United States v. Blue, 304 U.S. 251, 255 (1966). Moreover, by suppressing the tainted testimony against Mr. xxxxxxx, the Court protects the integrity of the judicial process. See Elkins v. United States, 364 U.S. 206, 217 (1960).

    In Mr. xxxxxxx’s case, the prosecutors violated § 201(c)(2) by purchasing the testimony of no less than seven witnesses. These violations directly tainted the evidence against Mr. xxxxxxx. The government cannot be permitted to benefit from the lawlessness of its own prosecutors. Therefore, the testimony of xxxxxxx, xxxxxxx, xxxxxxx, xxxxxxx, xxxxxxx, xxxxxxx, and xxxxxxx, given in violation of

§ 201(c)(2), must be suppressed.

III. Conclusion

    This Court once stated in a different context that “[i]t continues to believe that among the core functions of the judiciary are its ability to stand as a bulwark against overreaching by law enforcement and to achieve justice under law.” See Shepherd, 857 F.Supp. at 112. Purchased testimony obtained in violation of a clear statute constitutes unlawful prosecutorial overreaching. Moreover, such purchased testimony is inherently unreliable and subverts judicial efforts “to achieve justice under law.” The purchased testimony of all the principal witnesses in this case indelibly tainted Mr. xxxxxxx’s trial. Justice cannot permit such a corrupt conviction to stand. The Court should vacate Mr. xxxxxxx’s conviction and order that the purchased testimony of the prosecution witnesses be suppressed as evidence in this case.

                        Respectfully submitted,

                        A. J. KRAMER

                        FEDERAL PUBLIC DEFENDER


                        NEIL H. JAFFEE

                        Assistant Federal Public Defender

                        On Behalf of Appellant

                        625 Indiana Avenue, N.W., Suite 550

                        Washington, D.C. 20004

                        (202) 208-7500



    I HEREBY CERTIFY that on November 2, 1998, a copy of the foregoing Motion to Vacate, Set Aside or Correct Sentence in Incorporated Memorandum of Facts and Law, was served, by first-class mail, postage-prepaid, on Robert Okun, Chief, Special Proceedings Section, U.S. Attorney for the District of Columbia, 555 Fourth Street, N.W., Room 11-842, Washington, D.C. 20001.


                        Neil H. Jaffee

                        Assistant Federal Public Defender