UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

RAMSEY, CHARLES W.


97-3100a

D.C. Cir. 1999


*	*	*


Karen LeCraft Henderson, Circuit Judge: Charles Ram- sey was convicted
of one count of possessing cocaine with  intent to distribute in
violation of 21 U.S.C. s 841(a)(1),  (b)(1)(B)(ii). Through counsel,
Ramsey raises several issues,  including whether the trial court
erred: (1) in allowing the  Government to introduce evidence of
Ramsey's character; (2)  in failing to find entrapment as a matter of
law and (3) in  sentencing Ramsey to 210 months' imprisonment. Ramsey 
pro se appeals the Government's use of Francisco Fierro as  an
informant witness. Finding no error, we affirm Ramsey's  conviction


I. Background


On December 14, 1995, Ramsey was charged in a two-count  indictment
with one count of possessing cocaine with intent to  distribute, see
21 U.S.C. s 841(a)(1), (b)(1)(B)(ii), and one  count of attempted
possession with intent to distribute, see 21  U.S.C. s 846. The
charges arose out of a Drug Enforcement  Administration (DEA)
undercover operation that began earli- er in 1995 when Francisco
Fierro agreed to assist DEA as an  informant, following his arrest for
attempted murder and  various weapons offenses after a fight in a
Miami restaurant.  Although Fierro could provide no leads in Florida,
DEA  decided to use Fierro as an informant in the Washington,  D.C.
area because his main client had been a Washington- area drug dealer
named Charles Ramsey. Fierro informed  DEA Agent Ronald Woods that he
had delivered substantial  quantities of drugs to Ramsey in Washington
at least eight  times in 1993-94 and that Ramsey accounted for all of


The first transaction between Fierro and Ramsey took  place in
Georgetown in early 1993 when Fierro delivered  approximately seven
ounces of heroin to Ramsey. Seven  times over the following year,
Fierro delivered between one  and ten kilograms of cocaine to Ramsey,
selling him in toto 39 


kilograms of cocaine for approximately $20,000 each.1 The  two men
used a delivery procedure that involved a meeting,  usually in a hotel
room, where Fierro "fronted" Ramsey one  or two kilograms. Ramsey then
left to sell the cocaine and  returned later with payment. Fierro then
fronted Ramsey  another one or two kilograms and Ramsey repeated the 
procedure until all of the drugs had been sold, usually within  one
week. In mid-1994, at his wife's insistence, Fierro left  the drug
trade.


In September 1995 DEA decided to use Fierro in a "re- verse" undercover
operation against Ramsey. DEA's initial  plan was to conduct the
transaction differently from the way  Fierro and Ramsey had
traditionally done business--by mak- ing Ramsey pay for the drugs up
front. DEA also sought to  increase its control over the operation by
having DEA Agent  Robert Valentine pose as a drug dealer. Fierro's
role was to  facilitate the exchange between Valentine and Ramsey.


Between mid-September 1995 and his arrest on November  21, 1995, Ramsey
and Fierro had numerous recorded tele- phone and face-to-face
conversations about drug transactions.  Most of the conversations were
recorded by DEA or by  Fierro using DEA-supplied equipment. On
September 25,  1995 Ramsey met Fierro in a hotel room. During a video-
taped conversation, they discussed a five-kilogram transaction  and
the fact that Valentine, posing as the distributor, re- quired payment
up front. While Ramsey was eager to move  several kilograms, he did
not have the cash to buy the drugs  at delivery. On October 6, 1995
Valentine and Ramsey met  without Fierro at a restaurant. Ramsey
mentioned that  Washington was currently "dry" of cocaine on both the
whole- sale and retail levels, a fact consistent with DEA information.
 Ramsey wanted to know if the drugs could be fronted but  Valentine
refused. Nevertheless, Valentine assured Ramsey 




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n 1 The district court ruled that Ramsey's seven cocaine transac- tions
with Fierro were admissible to show intent and absence of  mistake
under Fed. R. Evid. 404(b) but it ruled any reference to the  heroin
from their first transaction inadmissible under Fed. R. Evid.  403.


that he would contact him about selling five kilograms of  cocaine.


On October 24, 1995 Valentine and Fierro met Ramsey at a  hotel. They
had cocaine with them. In an audio taped  conversation Ramsey asked to
see the cocaine but, after going  "around and around" with Valentine,
still refused to pay up  front. Tr. at 506. The three men arranged to
meet again on  November 2, 1995. On November 2, in a videotaped
conver- sation in Valentine's car, Valentine showed Ramsey five one-
kilogram bricks. Ramsey said that he could move the cocaine  quickly
and offered to pay for one kilogram but not until 8:00  p.m. that
evening. Becoming increasingly suspicious, Valen- tine rejected the


After this transaction fell through, it was clear to DEA that  Ramsey
would not deal unless he was fronted the drugs and  that Ramsey
preferred to deal only with Fierro. Therefore,  DEA changed its
strategy by pulling Valentine out of the  operation and instructing
Fierro to arrange a buy using his  old procedure. On November 15, 1995
Fierro contacted  Ramsey and offered to front him five kilograms on
November  21, 1995. When Ramsey arrived at Fierro's hotel room on  the
21st, Fierro showed him the five one-kilogram bricks.  Agreeing to a
cost of $20,000 each, Ramsey decided to take  two kilograms and said
that he would return for the other  three. Ramsey then placed the two
bricks inside a black  duffle bag and left the room. He was arrested
by DEA  agents in the hallway and the drugs were recovered from his 


On May 14, 1996 Ramsey's jury trial commenced in the  district court.
On May 21, 1996 the jury returned a guilty  verdict on the first
count. Before sentencing, Ramsey filed a 




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n 2 Ramsey gave DEA a written statement before signing a  written
waiver of his Fifth and Sixth Amendment rights. After the  statement
had been admitted into evidence at trial, the district  court
suppressed the statement. Ramsey's defense counsel affir- matively
asked that a mistrial not be granted. The district court  instructed
the jury to disregard the statement and related testimo- ny.


pro se motion for a new trial, arguing ineffective assistance of 
counsel. The district court appointed new counsel on Sep- tember 16,
1996 and issued an order on June 27, 1997 denying  Ramsey's new trial
motion as not timely filed. After a  hearing, the district court
denied Ramsey's objections to the  presentence report in a December
15, 1997 order. On De- cember 17, 1997 the district court sentenced
Ramsey to 210  months' imprisonment followed by eight years of
supervised  release. Ramsey timely filed this appeal, requesting that
his  conviction be reversed or, alternatively, that he be resen-


II. Discussion


A.


On appeal, Ramsey advances several arguments, all without  merit.
First, Ramsey argues that the district court erred by  twice admitting
Valentine's testimony about Ramsey's past  criminal history. The
district court, however, did not abuse  its discretion3 in admitting
the evidence because Valentine's  testimony was not elicited to show
Ramsey's propensity to  commit a crime, see Fed. R. Evid. 404(a), but
rather as a  response to defense counsel's attempts to challenge the
volun- tariness of Ramsey's statement and to defense counsel's  theory
that DEA had entrapped Ramsey based on the "lies"  of its informant,
Fierro. As the record manifests, Ramsey's  counsel raised the subject
of his client's extensive criminal  history. See United States v.
Davis, 127 F.3d 68, 71 (D.C.  Cir. 1997) ("The elicitation by the
defense of the very testimo- ny now challenged ... for its own
affirmative purposes, is an  independent reason for finding no
error...."), cert. denied,  119 S. Ct. 215 (1998); United States v.
Baumgarten, 517 F.2d  1020, 1029 (8th Cir. 1975) (finding no prejudice




__________

n 3 If defense counsel properly preserved his objection at trial,  we
review the district court's admission of evidence for abuse of 
discretion. See United States v. Salamanca, 990 F.2d 629, 637  (D.C.
Cir.), cert. denied, 510 U.S. 928 (1993). Nevertheless, the  district
court's decision to admit evidence, even of prior bad acts, is 
entitled to "much deference" on review. United States v. Lewis,  693
F.2d 189, 193 (D.C. Cir. 1982).


regarding defendant's prior arrests after defense counsel, on 
cross-examination of government witness, raised issue), cert.  denied,
423 U.S. 878 (1975). Moreover, Ramsey was not  prejudiced by the
testimony since the Government had al- ready introduced evidence of
two previous narcotics convic- tions to rebut Ramsey's entrapment


Second, Ramsey contends that Valentine provided opinion  testimony
about the drug trade even though he was not  qualified as an expert
witness under Federal Rule of Evi- dence 702.4 We believe that the
district court did not plainly  err in admitting this testimony.
Although the trial judge  never formally qualified Valentine as an
expert witness, his  testimony functionally satisfied the requirements
for expert  testimony set forth in Federal Rule of Evidence 702.5 See 
United States v. Walls, 70 F.3d 1323, 1326 (D.C. Cir. 1995)  (finding
opinion testimony admissible under Rule 702 as  " 'specialized
knowledge' [that] would 'assist the trier of fact  to understand the
evidence' ") (quoting Fed. R. Evid. 702),  cert. denied, 117 S. Ct. 90
(1996); United States v. McDonald,  933 F.2d 1519, 1522 n.2 (10th
Cir.) (where "the court heard  the witness describe his
qualifications, including his special- ized knowledge, education,
skill and experience, and then  allowed the witness to give opinion
testimony," appellate  court can assume witness was accepted as expert
witness),  cert. denied, 502 U.S. 897 (1991); United States v. Maher,
645  F.2d 780, 783-84 (9th Cir. 1981) (DEA agent not qualified as 
expert but his expert testimony on drug trade was upheld in  light of


We also find no plain error in the district court's failure to 
instruct the jury regarding the proper weight to be given  Valentine's
opinion testimony since Ramsey can show no  prejudice from the
admission of that testimony. See United  States v. Olano, 507 U.S.
725, 734 (1993) (in plain error cases 




__________

n 4 Because Ramsey made no objection at trial, our review is for  plain
error. See Lewis, 693 F.2d at 193.


5 Rule 702 states in part: "[A] witness qualified as an expert by 
knowledge, skill, experience, training, or education, may testify 
thereto in the form of an opinion or otherwise."


appellant bears "burden of persuasion with respect to preju- dice");
United States v. Catlett, 97 F.3d 565, 571 (D.C. Cir.  1996) (no bar
in this Circuit to "dual testimony as both a fact  and expert
witness"); see also United States v. Anderskow,  88 F.3d 245, 251 (3d
Cir.) (no prejudice in light of overwhelm- ing evidence of defendant's
predisposition and guilt and fact  that Government did not rely on
challenged opinion testimony  during summation), cert. denied, 117 S.
Ct. 613 (1996). In  fact, Ramsey's own counsel repeatedly asked
Valentine for  opinion testimony during cross-examination.


Nor do we accept Ramsey's contention that Valentine's  purported
opinion testimony violated Federal Rule of Evi- dence 704 given the
context of the prosecutor's question and  Valentine's answer. See
United States v. Smart, 98 F.3d  1379, 1388 (D.C. Cir. 1996) (adopting
Seventh Circuit test to  determine whether expert testimony violates
Rule 704(b),  which "assess[es] two key elements," to wit: "(1) the
lan- guage used by the questioner and/or the expert, including use  of
the actual word 'intent'; and (2) whether the context of the 
testimony makes clear to the jury that the opinion is based on 
knowledge of general criminal practices, rather than some  special
knowledge of the defendant's mental processes") (quo- tation omitted),
cert. denied, 117 S. Ct. 1271 (1997). After an  initial defense
objection, the district court allowed the prose- cutor to ask
Valentine, "[D]id you have information indepen- dent of what you
learned from [Fierro] and Mr. Ramsey  himself which led you to believe
that Mr. Ramsey would be  ready and willing and able to engage in this
cocaine transac- tion?" Tr. at 552. Ramsey argues that by answering
"Yes"  to the prosecutor's question, Valentine, if considered an ex-
pert witness, violated Rule 704(b) ("[n]o expert witness testi- fying
with respect to the mental state or condition of a  defendant in a
criminal case may state an opinion or inference  as to whether the
defendant did or did not have the mental  state or condition
constituting an element of the crime  charged or of a defense
thereto"). Since predisposition to  commit a crime implicates Ramsey's
entrapment defense, he  argues that Valentine's affirmation that he
was "ready and  willing and able to engage in this cocaine


out a limiting jury instruction is plain error, citing United  States
v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995), and United  States v.
Williams, 980 F.2d 1463, 1466 (D.C. Cir. 1992).  Valentine, however,
testified merely as to his agency's knowl- edge and intent at the time
it decided to initiate an undercov- er operation against Ramsey to
rebut defense counsel's sug- gestion that DEA relied solely on Fierro
for information  about Ramsey's willingness to deal drugs. See, e.g.,
Tr. at  550 (prosecutor affirming, "All I want to ask [Valentine] is
if  he has pertinent information that led him to believe that  there
was not going to be an entrapment issue....").


We next reject Ramsey's claim of entrapment as a matter  of law because
the record contains ample evidence that  Ramsey was predisposed to
commit a drug offense. See  United States v. Neville, 82 F.3d 1101,
1107 (D.C. Cir. 1996);  United States v. Budd, 23 F.3d 442, 445 (D.C.
Cir. 1994), cert.  denied, 513 U.S. 1115 (1995).6 The record reflects
that 




__________

n 6 To establish entrapment Ramsey must first show that he was  induced
by the Government to commit a crime he otherwise would  not have
committed. If Ramsey meets his burden, the Government  must then prove
beyond a reasonable doubt that he was predis- posed to commit the
crime. See Neville, 82 F.3d at 1107; Budd, 23  F.3d at 445. Under our
"bifurcated approach," "the jury, not the  judge, decides whether the
defendant has carried his burden of  proving inducement" and, if so,
whether "the government has met  its burden of proving
predisposition." United States v. Whoie, 925  F.2d 1481, 1483 (D.C.
Cir. 1991). Our review "focus[es] on the  predisposition issue" and
"must uphold the jury's verdict if, viewing  the evidence in the light
most favorable to the Government, a  reasonable jury could have found
that the Government proved  beyond a reasonable doubt that the
defendant was predisposed to  commit the crime." Neville, 82 F.3d at
1107 (citing Budd, 23 F.3d  at 445 & n.2). To establish
predisposition, the Government must  show a "state of mind which
readily responds to the opportunity  furnished by the officer or his
agent to commit the forbidden act,"  United States v. Burkley, 591
F.2d 903, 916 (D.C. Cir. 1978)  (quotation omitted), cert. denied, 440
U.S. 966 (1979), based on "the  entirety of the events surrounding the
ultimate commission of the  crime," United States v. Kelly, 748 F.2d
691, 699 (D.C. Cir. 1984).  Relevant considerations include: Ramsey's


Ramsey had a long history of dealing in substantial quantities  of
drugs. This evidence includes: 1975 and 1976 convictions  of similar
offenses, see Neville, 82 F.3d at 1107-08 (finding  evidence of prior
criminal activity probative of appellant's  predisposition); testimony
by Fierro, Valentine and Agent  Woods that Ramsey had frequently and
recently bought large  quantities of cocaine from Fierro using
"fronting" to pay for  the drugs; and Ramsey's recorded admissions of
previous  narcotics deals and interest in having Fierro supply him
with  cocaine. Although Ramsey points to his several unproductive 
meetings with Fierro and Valentine to suggest that he was  reluctant
to buy, his reluctance evaporated as soon as Fierro  agreed to front


Nor did the district court err in counting the 39 kilograms  of cocaine
Ramsey purchased from Fierro in 1993-94 as part  of the "same course
of conduct" as Ramsey's offense of  conviction under the Sentencing
Guidelines. U.S.S.G.  s 1B1.3(a)(2) (requiring district court to
determine offense  level "solely with respect to offenses ... that
were part of the  same course of conduct or common scheme or plan as
the  offense of conviction"); see United States v. Ramsey, No. 
95-326, at 3-6 (D.D.C. Dec. 15, 1997) (sentencing opinion);  see also
United States v. Pinnick, 47 F.3d 434, 438 (D.C. Cir.  1995) (clear
error review of district court's determination that  past conduct is
related to offense of conviction). "Extraneous  offenses qualify as
part of the same course of conduct if 'they  are sufficiently
connected or related to each other as to  warrant the conclusion that
they are part of a single episode,  spree, or ongoing series of
offenses.' " Pinnick, 47 F.3d at  438 (quoting U.S.S.G. s 1B1.3(a)(2),
comment n.9(B)). Thus,  the district court's inquiry must "focus[ ] on
whether the  defendant repeats the same type of criminal activity over
time  and engage[s] in an identifiable behavior pattern of specified 
criminal activity." Id. (quotation omitted). Here, the district 




__________

n transaction, the pressure applied by the Government, any reluc- tance
displayed by Ramsey and Ramsey's past illegal conduct. See  Neville,
82 F.3d at 1107-08; Budd, 23 F.3d at 446; Burkley, 591  F.2d at 916.


court went beyond an analysis of temporal proximity, noting  that the
transactions involved the same parties, see United  States v. Jones,
948 F.2d 732, 737 (D.C. Cir. 1991), were of a  similar character and
nature and involved between one and  ten one-kilogram bricks of
cocaine, see Pinnick, 47 F.3d at  439, and that the temporary hiatus
was Fierro's, rather than  Ramsey's, decision. See United States v.
Santiago, 906 F.2d  867, 872 (2d Cir. 1990) (transactions separated by
8-14  months while buyer was incarcerated were sufficiently similar 
in other respects to constitute same course of conduct).  Since
Ramsey's nine drug transactions with Fierro manifest- ed an ongoing
relationship and pattern of criminal activity,  the district court did
not clearly err in counting 39 kilograms  from previous transactions
as part of the "same course of  conduct" under U.S.S.G. s


Finally, Ramsey cannot establish sentencing entrapment  because the
district court correctly found that he was predis- posed to purchase
five kilograms on November 21, 1995. See  United States v. Shepherd,
102 F.3d 558, 566 (D.C. Cir. 1997)  (for sentencing entrapment "main
element ... is ... the  defendant's predisposition") (quotation
omitted); Walls, 70  F.3d at 1329 (same); see also United States v.
Washington,  106 F.3d 983, 1015 (D.C. Cir. 1997) (reviewing district
court's  findings of fact for clear error, "giving due deference to
the  district court's application of the Guidelines to the facts"), 
cert. denied, 118 S.Ct. 446 (1997). For instance, the record  shows
inter alia that Ramsey saw the five kilograms, asked  Fierro to supply
drugs weekly and routinely purchased up to  ten, but ordinarily five,
kilograms using the fronting method.  See Shepherd, 120 F.3d at




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n 7 In any event our decision affirming the district court's finding 
that Ramsey's relevant conduct included the 39 kilograms that he 
purchased in 1993-94 makes his sentencing entrapment argument  moot.
The district court attributed 44 kilograms of cocaine to  Ramsey, of
which five kilograms were from his November 21, 1995  offense of
conviction, in calculating a base offense level of 34.  Nevertheless,
Ramsey asserts that he was only predisposed to  purchase one of the
five kilograms of cocaine from Fierro on  November 21, 1995. See
Appellant's Br. at 31-32; Appellee's Br. at 


B.


Ramsey's pro se challenge8 requires a lengthier discussion  not because
of its merit but because our Circuit has not  heretofore ruled on the
challenge that our sister circuit courts  have rejected. Ramsey asks
this Court to consider whether  the Government's use of Fierro as an
informant violated 18  U.S.C. s 201(c)(2).9 Ramsey made his challenge
after the  Tenth Circuit, in an unprecedented10 decision, held that a 
federal prosecutor's agreement granting leniency to an ac- complice in
return for truthful testimony as a government  witness violated the
plain language of section 201(c)(2). See  United States v. Singleton,
144 F.3d 1343, 1352 (10th Cir.  1998). The court therefore held
inadmissible the accomplice's  testimony and reversed Singleton's
conviction. See id. at  1347. The Tenth Circuit sitting en banc has
since reversed  the panel decision. See United States v. Singleton,
1999 WL  6469 (10th Cir. Jan. 8, 1999) (en banc). In the meantime, the
 Singleton panel's interpretation of section 201(c)(2) has been 
rejected by the Fifth and Sixth Circuits and every federal  district
court to consider the issue, save three. See, e.g., 




__________

n 31 & n.22. But see Sentencing Tr. at 13 (Ramsey's counsel in- formed
court that relevant amount of drugs was "two kilograms of  cocaine
[Ramsey] walked out the door with"). According to  U.S.S.G. s
2D1.1(c)(3), however, "[a]t least 15 KG but less than 50  KG of
[c]ocaine" places Ramsey at level 34. Thus, reducing the  amount of
cocaine attributable to Ramsey by four (or even five)  kilograms is of


8 Because Ramsey makes this argument for the first time on  appeal, we
apply the plain error standard of review. See Fed. R.  Crim. P. 52(b);
United States v. Olano, 507 U.S. 725 (1993).


9 Section 201(c)(2) subjects to criminal liability: "Whoever ... 
directly or indirectly, gives, offers or promises anything of value to
 any person, for or because of the testimony under oath or affirma-
tion given or to be given by such person as a witness" in a federal 
trial or proceeding.


10 Until Singleton, no other court in the thirty-six year history  of
section 201(c)(2) had applied its prohibition to a prosecutorial 
grant of leniency in exchange for truthful testimony.


United States v. Haese, 162 F.3d 359, 366 (5th Cir. 1998)  (rejecting
Singleton and noting that circuit precedent has  "consistently ...
upheld government efforts to provide bene- fits to witnesses in
exchange for testimony") (quotation omit- ted); United States v.
Webster, 162 F.3d 308, 357-58 (5th Cir.  1998) (rejecting Singleton on
plain error review); United  States v. Ware, 161 F.3d 414 (6th Cir.
1998); United States v.  Szur, 1998 WL 661484 (S.D.N.Y. Sept. 24,
1998); United  States v. Mejia, 1998 WL 598098 (S.D.N.Y. Sept. 8,
1998);  United States v. Barbaro, 1998 WL 556152 (S.D.N.Y. Sept. 1, 
1998) (rejecting Singleton because of historical acceptance of 
leniency in exchange for truthful testimony); United States v. 
Juncal, 1998 WL 525800 (S.D.N.Y. Aug. 20, 1998) (relying on 
historical acceptance of leniency in exchange for testimony  and on
canon of statutory construction requiring that govern- ment be
expressly included in statutory text to come within  statute's
purview); United States v. Reid, 19 F. Supp. 2d 534  (E.D. Va. 1998);
United States v. Arana, 18 F. Supp. 2d 715  (E.D. Mich. 1998); United
States v. Dunlap, 17 F. Supp. 2d  1183 (D. Colo. 1998); United States
v. Pungitore, 15 F. Supp.  2d 705 (E.D. Pa. 1998); United States v.
Guillaume, 13  F. Supp. 2d 1331 (S.D. Fla. 1998); United States v.
Eisen- hardt, 10 F. Supp. 2d 521 (D. Md. 1998) (criticizing Single-
ton's reasoning, particularly application of exclusionary rule); 
United States v. Gabourel, 9 F. Supp. 2d 1246 (D. Colo. 1998).  But
see United States v. Mays, No. 97-CR-127 (E.D. Tenn.  Sept. 18, 1998);
United States v. Lowery, 15 F. Supp. 2d 1348  (S.D. Fla. 1998)
(agreeing with Singleton that plain meaning  of section 201(c)(2)
encompasses government); United States  v. Fraguela, 1998 WL 560352


For several reasons, we hold that section 201(c)(2) does not  prohibit
the Government from granting leniency in exchange  for truthful
testimony.


We first look to the Dictionary Act, 1 U.S.C. s 1, which is  to be used
"[i]n determining the meaning of any Act of  Congress, unless the
context indicates otherwise," and note  that its definition of
"whoever" does not expressly include the  United States. 1 U.S.C. s 1
(defining "whoever" to include 


"corporations, companies, associations, firms, partnerships, 
societies, and joint stock companies, as well as individuals"). 
Moreover, we conclude that the meaning of "[w]hoever" in  section
201(c)(2) should be limited by the canon of construc- tion that a
statute does not apply to the government or affect  governmental
rights unless the text expressly includes the  government. In United
States v. Nardone, 302 U.S. 379, 383  (1937), the Supreme Court
declared, "[T]he cases in which  [the canon] has been applied fall
into two classes." First, the  canon applies if application of the
statute to the United States  "would deprive the sovereign of a
recognized or established  prerogative title or interest." Id. There
are, according to  Nardone, two exceptions to this class of cases.
Under the  first exception, "[t]he rule of exclusion of the sovereign
is less  stringently applied where the operation of the law is upon
the  agents or servants of the government rather than on the 


The Nardone canon also applies if application of the statute  to public
agents would create an obvious absurdity. See id.  at 384; see also
United States v. Granderson, 511 U.S. 39, 47  n.5 (1994) (statute's
plain meaning disregarded if it "leads to  an absurd result").12


We first conclude that application of section 201(c)(2) to the  United
States would deprive the sovereign of a critically  important
interest, one that is well established in our legal  system and
recognized by the courts, the Congress and, more  recently, the United
States Sentencing Commission. The 




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n 11 The second exception to this class of cases provides that "the 
sovereign is embraced by general words of a statute intended to 
prevent injury and wrong" even if the statute infringes upon a 
recognized government prerogative. Nardone, 302 U.S. at 384.


12 As at least two courts have noted, Nardone did not expressly  so
limit the canon's applicability. See Ware, 161 F.3d at 419 n.1; 
Arana, 18 F. Supp. 2d at 718 ("Nothing in [Nardone] or any other 
Supreme Court decision 'limits' application of the canon to only the 
two classes of cases mentioned."). Nardone simply noted that the 
canon "has been applied" to the two types of cases discussed  therein.
Nardone, 302 U.S. at 383.


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, which noted its "ancient"  origins and "established usage" in
holding:


that an accomplice duly admitted as a witness in a  criminal
prosecution against his associates ... , if he  testifies fully and
fairly, will not be prosecuted for the  same offence.... When he
fulfills those conditions he is  equitably entitled to a pardon, and
the prosecutor, and  the court if need be, when fully informed of the
facts, will  join in such a recommendation.


The Whiskey Cases (United States v. Ford), 99 U.S. 594, 599- 601, 604
(1878). Although the Supreme Court has not yet  addressed the issue
before us, it has consistently upheld the  practice of plea
bargaining. Other Supreme Court cases  sanction by implication a
prosecutorial promise of leniency in  exchange for truthful testimony.
See Delaware v. Van Ars- dall, 475 U.S. 673, 679-80 (1986) (concluding
that court's  refusal to allow defendant to question witness about
dis- missed charge violated Sixth Amendment right to confronta- tion);
Roberts v. United States, 445 U.S. 552, 558 (1980)  (affirming
sentence due in part to defendant's refusal to  cooperate with
government in spite of being offered "favor- able disposition of his
case"); id. at 568 (Marshall, J., dissent- ing) (expressly upholding
plea bargaining process); Giglio v.  United States, 405 U.S. 150
(1972) (holding prosecution's  failure to disclose promise of leniency
to witness, provided in  exchange for that witness's testimony,


Circuit courts have been more explicit in their approval of a 
prosecutorial plea agreement with an accomplice or co- defendant
conditioned on his truthful testimony for the Gov- ernment. See, e.g.,
United States v. Gomez, 810 F.2d 947, 956  (10th Cir. ), cert. denied,
482 U.S. 908 (1987); United States v.  Dailey, 759 F.2d 192, 196 (1st
Cir. 1985) (noting that "[l]ong  ago the courts rejected the notion
that the testimony of co- defendants and other interested witnesses
was so likely to be  unreliable that it should be excluded"); United


Kimble, 719 F.2d 1253 (5th Cir. 1983), cert. denied, 464 U.S.  1073
(1984); United States v. McCallie, 554 F.2d 770, 772 (6th  Cir. 1977);
United States v. Barrett, 505 F.2d 1091, 1102 (7th  Cir. 1974)
(sanctioning grant of civil immunity in exchange for  testimony and
stating, "If the government can excuse crimi- nal or civil liability
in settling a criminal case, surely it can  use that power of
compromise to obtain guilty pleas or to  procure testimony in other
proceedings. Both are legitimate  objectives of plea bargaining.")
(emphasis original), cert. de- nied, 421 U.S. 964 (1975). According to
the Fifth Circuit,  "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." United States v.  Cervantes-Pacheco, 826 F.2d
310, 315 (5th Cir. 1987), cert.  denied sub nom. Nelson v. United


Moreover, the Federal Rules of Criminal Procedure recog- nize and
accept plea bargaining. Although Rule 11(e), which  sets out the
procedure governing plea agreements, does not  identify the types of
commitments the Government may ask  of individuals in exchange for
leniency, the Advisory Commit- tee notes recognize that an agreement
may require more than  relinquishing the right to trial. According to
the notes to the  1975 amendments of Rule 11:


[It is apparent, though not explicitly stated, that Rule  11(e)
contemplates that the plea agreement may bind the  defendant to do
more than just plead guilty or nolo  contendere. For example, the plea
agreement may bind  the defendant to cooperate with the prosecution in
a  different investigation. The Committee intends by its  approval of
Rule 11(e) to permit the parties to agree on  such terms in a plea
agreement.]


Fed. R. Crim. P. 11 Advisory Committee's notes (1975)  (brackets in
original); see also id. Advisory Committee's  notes (1974) ("plea
agreement[s] may also contribute to the  successful prosecution of
other more serious offenders").


In addition, both the United States Code and the Sentenc- ing
Guidelines contemplate the prosecutor's use of a plea  agreement in
exchange for truthful testimony against a defen- dant. For example,
the Sentencing Reform Act of 1984  established the United States
Sentencing Commission and  explicitly required it "to take into
account a defendant's  substantial assistance in the investigation or
prosecution of  another person who has committed an offense." 28
U.S.C.  s 994(n). The 1984 Act also allows a court on the Govern-
ment's motion "to impose a sentence below a level established  by
statute as minimum sentence so as to reflect 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). The
Sentencing Guidelines themselves authorize  the sentencing court to
depart downward for any defendant  who provides "substantial
assistance in the investigation or  prosecution of another person who
has committed an offense."  U.S.S.G. s 5K1.1. Among the factors the
court may consider  in determining whether to grant the Government's
motion for  downward departure are "the truthfulness, completeness,
and  reliability of any information or testimony provided by the 


Moreover, application of section 201(c)(2) to the Govern- ment
obstructs the sovereign's, not the individual prosecu- tor's, interest
in plea agreements inasmuch as the prosecutor  brings federal criminal
charges in the name of the United  States. As the Sixth Circuit aptly
noted:


When an assistant United States Attorney (AUSA) en- ters into a plea
agreement with a defendant, that plea  agreement is between the United
States government and  the defendant. When an AUSA uses at trial
testimony  obtained through a plea agreement or an agreement not  to
prosecute, he does so as the government. An AUSA  who, pursuant to the
provisions of the United States  Sentencing Guidelines, moves for a
downward departure  under s 5K1.1, does so as the government.


Ware, 161 F.3d at 421; see also 18 U.S.C. s 3553(e) (allowing  sentence
reduction "[u]pon motion of the government").


Nor are we persuaded by any assertion that the Congress  intended
section 201(c)(2) "to prevent fraud, injury, or wrong"  arising from
government offers of leniency in exchange for  truthful testimony. A
prosecutor is obligated to disclose any  benefit conferred on any
witness, see Giglio, 405 U.S. at 150,  and a benefit conferred under a
plea agreement must be  approved by the district court. See Fed. R.
Crim. P. 11(e).  Furthermore, any prosecutor who attempts to
"corruptly"  bribe a witness could be prosecuted under 18 U.S.C.  s
201(b)(3).13 Such a prosecutor would not be acting as the  United
States because an ultra vires act implicates no sover- eign interest.
Accordingly, having determined that neither of  the exceptions to the
first class of Nardone cases applies, we  conclude that application of
section 201(c)(2) to the Govern- ment would deprive the sovereign of a
recognized and estab- lished prerogative and interest. See Nardone,


In addition, we believe this case falls within the second  class of
cases to which the Nardone canon applies. Applica- tion of section
201(c)(2) to a federal prosecutor offering  leniency in exchange for
truthful testimony works obvious  absurdities. To interpret section
201(c)(2) as the Tenth Cir- cuit originally did, see Singleton 144
F.3d at 1346-48, would  expose to criminal liability any federal
prosecutor who en- tered into a plea agreement pursuant to Rule 11(e)
and any  federal judge who either approved a Rule 11(e) plea agree-
ment or reduced a sentence pursuant to 18 U.S.C. s 3553(e)  or
U.S.S.G. s 5K1.1(a)(2) based in part on a witness's testimo-




__________

n 13 Section 201(b)(3) subjects to criminal liability:


Whoever ... directly or indirectly, corruptly gives, offers, or 
promises anything of value to any person, or offers or promises  such
person to give anything of value to any other person or  entity, with
intent to influence the testimony under oath or  affirmation of such
first-mentioned person as a witness [in  federal trials or
proceedings] or with intent to influence such  person to absent


18 U.S.C. s 201(b)(3) (emphasis added).


ny.14 See Arana, 18 F. Supp. 2d at 719; Dunlap, 17 F. Supp.  2d at
1184-87. In addition, such an interpretation of section  201(c)(2)
would end a centuries-old practice of allowing coop- erating criminals
to testify against their confederates in hopes  of receiving more
lenient treatment. Faced with a ban on a  plea agreement in exchange
for cooperative testimony, the  Government would face a near
impossible task in trying to  convict those higher up in a criminal
organization. See  generally Kastigar v. United States, 406 U.S. 441,
446 (1972)  (noting enactment of immunity statutes "reflects the
impor- tance of testimony, and the fact that many offenses are of 
such a character that the only persons capable of giving  useful
testimony are those implicated in the crime").


The application of section 201(c)(2) to public officers also  produces
an absurd conflict with statutory schemes prescrib- ing reduced
sentences and immunity for co-conspirators and  accomplices who
provide testimony for the Government. See,  e.g., 18 U.S.C s 3521
(Witness Relocation and Protection  Act authorizing Attorney General
to exchange things of value  for witness's agreement "to testify"); 18
U.S.C s 3553(e)  (reduction below statutory minimum sentence
authorized in  exchange for "substantial assistance"); 18 U.S.C ss
6001-05  (federal immunity statutes); 28 U.S.C. s 994(n) (requiring 
Sentencing Commission to provide for sentencing guideline 
reductions); Gabourel, 9 F. Supp. 2d at 1247 (rejecting  original
Singleton interpretation after examining "the larger  statutory
context, its object and policy"). For instance, 18  U.S.C. s 6003, a




__________

n 14 As the Sixth Circuit correctly noted:


This result cannot be avoided by attempting to argue that the  language
of the statute forbids only the use of the testimony  from a witness
who has entered into the plea agreement, not  the plea agreement
itself. Because a defendant who enters  into a plea agreement pursuant
to Rule 11 must appear before  the court and enter his plea, the
defendant's entry of that plea  is testimony.


Ware, 161 F.3d at 421 (citing Brady v. United States, 397 U.S. 742, 
748 (1970)).


Act of 1970, authorizes a United States Attorney, with the  approval of
the Attorney General or certain other federal  officials, to seek a
court order granting immunity to a witness  whose testimony he
considers necessary in the public interest.  Yet a grant of immunity
pursuant to 18 U.S.C. s 6003 is  clearly "[some]thing of value" given
"for or because of the  testimony under oath or affirmation," 18
U.S.C. s 201(c)(2).  See Ware, 161 F.3d at 423 (concluding that more
recently  enacted statutes than section 201(c)(2) "specifically allow
what  [Singleton's original] broad interpretation of the more gener-
ally applicable s 201(c)(2) would prohibit"). We therefore  conclude
that application of section 201(c)(2) to federal prose- cutors
offering leniency in exchange for testimony works  obvious
absurdities. For these reasons, we apply the Nar- done canon "which
provides that statutes do not apply to the  government or affect
governmental rights unless the text  expressly includes the
government," Nardone, 302 U.S. at  383, and interpret "[w]hoever" as
used in 18 U.S.C.  s 201(c)(2) to be exclusive of the United States.


If we were to find the language of 18 U.S.C. s 201(c)(2)  ambiguous,
which we do not, an examination of the relevant  legislative history
would be appropriate. See Saadeh v. Far- ouki, 107 F.3d 52, 57 (D.C.
Cir. 1997) ("If the language is  plain on its face, courts do not
ordinarily resort to legislative  history."). Cf. Chevron U.S.A., Inc.
v. Natural Resources  Defense Council, Inc., 467 U.S. 837, 843 (1984)
(If "the statute  is silent or ambiguous with respect to the specific
issue, the  question for the court is whether the agency's answer is 
based on a permissible construction of the statute."). Noth- ing in
section 201(c)(2)'s legislative history indicates that the  Congress
intended to apply the statute to the Government's  plea arrangements.
Moreover, a sub silentio change of this  magnitude to the
well-established prosecutorial practice of  granting leniency in
exchange for testimony would be virtual- ly unprecedented. Such a
change ignores the rule of statuto- ry construction that "[a] party
contending that legislative  action changed settled law has the burden
of showing that the  legislature intended such a change." Green v.
Bock Laundry  Mach. Co., 490 U.S. 504, 521 (1989). Although House


No. 87-748, notes that section 201(h) (the predecessor of  section
201(c)(2)) "forbids offers of payments to a witness of  anything of
value 'for or because of' testimony given or to be  given," the
legislative history contains no indication that  section 201,
originally enacted in 1962 by Pub. L. No. 87-849,  was designed to
terminate the longstanding prosecutorial  prerogative of exchanging
leniency for truthful testimony.  H.R. Rep. No. 87-748, at 16 (1961);
see also S. Rep. No.  87-2213 (1961) (containing same language). The
legislative  history of the 1970, 1986 and 1994 amendments to section
201  is also silent on the issue. Nor do those amendments address  the
resulting contradiction in the statutory scheme if the  Congress had
intended section 201(c)(2) to apply to the  Government. In particular,
the 1986 and 1994 amendments  were passed after 18 U.S.C s 3553(e)
(reduction below statu- tory minimum sentence), 18 U.S.C s 6003
(immunity statute)  and 28 U.S.C. s 994(n) (requiring Sentencing
Commission to  allow sentencing guideline reductions) but the
potential con- flict with these statutes was never addressed. As the
Sixth  Circuit rightly concluded, "Clearly the explanation is that no 
such conflict exists as s 201(c)(2) was never intended to apply  to
the government." Ware, 161 F.3d at 423 (citing Pub. L.  No. 99-570 s
1007, 1986 U.S.C.C.A.N. (100 Stat. 32707) 5393;  Pub. L. No. 99-646 s


Finally, even if federal prosecutors were subject to section 
201(c)(2), that fact would not justify excluding Fierro's testi- mony.
The Congress prescribed a fine or imprisonment for a  violation of
section 201(c)(2). "Where Congress has both  established a right and
provided exclusive remedies for its  violation, we would 'encroach
upon the prerogatives' of Con- gress were we to authorize a remedy not
provided for by  statute." Ware, 161 F.3d at 424 (quoting United
States v.  Frazin, 780 F.2d 1461, 1466 (9th Cir.), cert. denied, 479
U.S.  844 (1986)); see United States v. Thompson, 936 F.2d 1249, 
1251-52 (11th Cir. 1991) (court may not suppress testimony  for
statutory violation unless Congress explicitly or implicitly  provided
exclusion as a remedy for a violation), cert. denied,  502 U.S. 1075
(1992); see also United States v. Hensel, 699 


F.2d 18, 29 (1st Cir. 1983) (exclusionary rule fashioned to  vindicate
"specific, constitutionally protected rights"), cert.  denied, 461
U.S. 958 (1983); United States v. Harrington, 681  F.2d 612, 615 (9th
Cir. 1982) ("There must be an exceptional  reason, typically the
protection of a constitutional right, to  invoke the exclusionary
rule."). Moreover, the Supreme  Court has acknowledged the
"substantial" cost of exclusion  which "hamper[s]" the enforcement of
valid laws and keeps  "concededly relevant and reliable evidence" from
the jury.  United States v. Janis, 428 U.S. 433, 447 (1976); see also 
United States v. Payner, 447 U.S. 727, 734 (1980) ("[U]nbend- ing
application of the exclusionary sanction ... would impede 
unacceptably the truth-finding functions of judge and jury.  After
all, it is the defendant, and not the constable, who  stands


III. Conclusion


For the foregoing reasons, we hold that 18 U.S.C.  s 201(c)(2) does not
prohibit the Government from granting  leniency in exchange for a
witness's truthful testimony. As  discussed earlier, Ramsey's other
assignments of error are  without merit. Accordingly, the defendant's
conviction and  sentence are


Affirmed.