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This order and judgment is not binding precedent, except under the doctrines of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-
United States v. Culp
Combined Opinion