The Courageous Decision That Lasted But Nine Days
The United States Code Forbids Giving “Anything of Value” in Consideration of Testimony
MAY 01, 2002 by JOSEPH S. FULDA
Sonya Evette Singleton is not a heroine, but for nine days her case shaped the law in the tenth judicial circuit of the United States and opened the doors for a bit more honor in government.
Ms. Singleton had been convicted of conspiracy to distribute cocaine and of money laundering, based partly on the testimony of one Napoleon Douglas, an accomplice to her offenses.
A three-judge panel of the Tenth Circuit, including its Chief Judge, asked why Mr. Douglas would possibly sell out a confederate. It turned out there were three reasons: First, the prosecutor had promised not to bring any additional drug charges against him; second, the prosecutor had promised to recommend a lightening of his sentencing for the charges already filed, or so Mr. Douglas believed; third, the prosecutor promised to inform the Mississippi parole board of Mr. Douglas’s material assistance in obtaining the conviction of Ms. Singleton and others. The prosecutor made these promises to Mr. Douglas in consideration of his testimony, a rather unsurprising practice in the case of victimless crimes since without some kind of sting operation the absence of a victim who is harmed makes it impossible to prosecute these crimes.1
There is only one problem with this mode of operation: It is illegal. § 201(c)(2) of Title 18 of the United States Code forbids giving “anything of value” in consideration of testimony. The panel of judges considered whether this applies to the government too. There were also questions raised by three precedents in other circuits. Among the issues were a ruling that something relatively “intangible” like a liquor license was not a thing of value and that a promise made to secure the status quo was not consideration. The panel made short shrift of these arguments:
We agree with those circuits which have held that the test of value is whether the recipient subjectively attaches value to the thing received. . . . In this light we apply the statutory phrase “anything of value” to the promises made to Mr. Douglas. The obvious purpose of the government’s promised actions was to reduce his jail time, and it is difficult to imagine anything more valuable than personal physical freedom. . . . In the case of the promise not to prosecute, the value was even greater: besides guaranteed physical freedom he was guaranteed freedom from the burden of defending himself and from the stigma of prosecution and conviction as well.
Our basis for determining these promises were of value is that the record indicates Mr. Douglas subjectively valued them. They were all he bargained for in return for his testimony and guilty plea.
We are likewise unpersuaded that preservation of the status quo cannot constitute a thing of value. The persuasion of the United States was brought to bear in return for testimony at a time when the witness’s status quo (which happened to be ill-gotten gain) was about to change drastically for the worse.
Good Austrian economists!
Does It Apply to the State?
As to the question of whether the statute applies to the government, the panel’s judges later reasoned: “To suggest that government attorneys performing prosecutorial functions are beyond scrutiny because of who they represent is anomalous because it merges attorney and client. . . . Merely because the government cannot be prosecuted if its agents violate a rule does not mean that the rule may be disregarded; to the contrary, the rule may be enforced by means other than prosecution, here by exclusion of evidence.”2
We think that in the hierarchy of “life, liberty, and property,” liberty clearly comes before property—and if Patrick Henry is the model, before life, as well. Yet, surely, no one would regard a witness whose testimony was obtained by bribery—property in exchange for “evidence”—as credible, and no judge aware of the bribe would allow the “witness” to testify in his courtroom. Yet uncounted thousands of prosecution witnesses are bribed by an offer of liberty—no charges, reduced charges, or less time under lock and key. Such witnesses are said to “turn state’s evidence,” and, indeed, the evidence is turned—from credible to inescapably tainted. There are few men who would not commit perjury to escape prison time, and to allow testimony against a defendant to be received in evidence when the alternative is the terrifying prospect of incarceration is simply unconscionable. It is, simply put, state bribery and subornation of perjury. No principle is more self-evident than that nothing can be believed of a witness with a gun to his head. Thus we no longer exact “confessions” from defendants by force or threat of force. To do so from his alleged accomplices is not much more credible—or honorable.
The panel also spoke to this issue, although in terms more muted than we just have:
If justice is perverted when a criminal defendant seeks to buy testimony from a witness, it is no less perverted when the government does so. Because § 201(c)(2) addresses what Congress perceived to be a wrong, and operates to prevent fraud on the federal courts in the form of inherently unreliable testimony, its proscription must apply to the government.
Alas, the decision, correct legally and morally, was not to stand. Nine days later, the entire U.S. Court of Appeals for the Tenth Circuit acting on its own motion voted to vacate the panel’s decision and to rehear the case en banc. Although all three judges on the original panel dissented, every other circuit judge voted with the majority to allow this offensive evidence-buying practice. They did this so quickly that the Federal Reporter, a compendium of appellate court decisions published quasi-privately by the West Publishing Company, contains no record of the panel’s original decision. The vacated decision is also gone from the Lexis and Westlaw legal databases, which are also only quasi-private; this, even though the first word on top of the original panel decision is “PUBLISH.” To find this decision, one has to go to completely private legal resources such as findlaw.com on the Internet.3 There truth lies buried from sight.
Contributing Editor Joseph Fulda is the author of Eight Steps towards Libertarianism (Free Enterprise Press). Copyright Joseph S. Fulda 2002
- See my “The Pernicious Nature of Victimless-Crime Laws,” Ideas on Liberty, April 2002, pp. 19–20.
- United States v. Singleton, 165 F.3d 1297, 1311 (10th Cir. 1999) (en banc) (Kelly, J., dissenting).
- See http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=10th&navby=case&no=973178&exact=1.