And Justice For All

By Brett A. Purtzer; Oct 1998

     Recently, the Tenth Circuit Court of Appeals decided United States of America v. Singleton, which is cited under appellate court case number 97-3178.  In that case, the court held that 18 USC § 201(c)(2), which prohibits giving, offering, or promising anything of value to a witness for his or her testimony, applies to the government under circumstances where it promises leniency to a witness in return for his or her favorable testimony.  Although this opinion was recently vacated and is scheduled to be heard en banc before the Tenth Circuit, the opinion should be reviewed as it may have precedential effect on the use of bargained-for testimony in the future by both state and federal prosecutors. 

     18 USC § 201(c)(2), in pertinent parts, states as follows:

        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.

     Importantly, the Singleton court did not limit, as the government urged, the applicability of this statute on the government.  Rather, the court held that it applies to whomever seeks to buy a witness's testimony.  The statute's purpose is to prevent fraud upon the courts through inherently unreliable testimony because of the built-in motive inducing such testimony.  Importantly, the court held that the purpose behind the statute was equally applicable to the government when it promises anything of value to a witness. 

     The court defined the phrase "anything of value" to include such vague statements as advising the cooperating witness's parole board of the nature and extent of his cooperation.  Under such interpretation any individual who testifies at the government's direction or urging may be seen to be providing such testimony for "value."  The court stated that "value" is defined as whether the recipient subjectually attaches value to the thing he or she receives in exchange for such testimony.  When you consider "value" from the subjective standpoint, it encompasses virtually anything that is important to that individual.

     Although the Tenth Circuit vacated this opinion, it did not vacate the statute or the purpose behind the statute.  When facing those circumstances where you have a cooperating witness, such as an informant, be certain to find out what thing of "value" the informant has received for his or her testimony.  Typically, the informant is receiving one of two things: money if the person is a snitch for hire, or a potential reduction of sentence if a person is working off a contract.  Under either circumstances, and there may be others, the reason behind enforcing the statute against the use of such testimony makes sense. 

     The Tenth Circuit court further held that the remedy if you have an individual who is testifying pursuant to such promise, is to suppress the testimony.  When you have a case where the arrest results from an undercover buy involving an informant, then the illegal means used to obtain the evidence against your client should be suppressed.  Additionally, where the evidence might be slight against your client but strong against a co-defendant, and the co-defendant has a reason to rat on your client to save his own skin, then, again, this statute may preclude the government from being able to offer the co-defendant anything of "value" to testify against your client as such testimony should be suppressed.

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