United States v. Lowery

PUBLISH

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 98-5228 U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
2/03/99
THOMAS K. KAHN
D.C. Docket No. 97-368-CR-WJZ CLERK

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

OSLET FRANKLIN LOWERY, JR.,

Defendant-Appellee.
________________________

No. 98-5229
________________________

D.C. Docket No. 97-6138-CR-WJZ

UNITED STATES OF AMERICA,

Plaintiff-Appellant,
versus

SHELDRED BURKE, GAIL HENDERSON, a.k.a. Gail Smith,
a.k.a. Twondy G. Henderson, et al.,

Defendants-Appellees.
 ________________________

No. 98-5231
________________________

D.C. Docket No. 98-6004-CR-WJZ

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

RANDALL WARD, TRAVIS MATHIS,

Defendants-Appellees.

_______________________

Appeals from the United States District Court
for the Southern District of Florida
_______________________
(February 3, 1999)

Before TJOFLAT, BLACK and CARNES, Circuit Judges.

CARNES, Circuit Judge:

This consolidated appeal involves what has come to be known as “the

Singleton issue,” with a related issue involving a state court professional

practice rule thrown in to boot. These defendants, in separate criminal cases,

prevailed upon the district court to grant their pretrial motions to suppress the

2
testimony of their alleged co-conspirators. That expected testimony had been

obtained through plea agreements in which the government promised to

consider recommending a lighter sentence in exchange for the alleged co-

conspirators’ substantial assistance in the prosecution of the remaining

defendants, i.e., these appellees.

The district court (the same judge in each case) held that such agreements,

although commonplace in the criminal justice system, are prohibited by 18

U.S.C. § 201(c)(2), which makes it a crime to give or promise anything of

value for testimony. The court also held that the agreements violated Rule 4-

3.4(b) of the Florida Bar Rules of Professional Conduct. It suppressed the

testimony obtained through the agreements on both grounds. We reverse.

I. BACKGROUND

We first discuss the procedural facts of each of the three cases.

A. THE LOWERY APPEAL

Oslet Franklin Lowery, Jr., along with his co-defendants Guillermo

Mallarino, Danny Morino, and Jose Forero, was indicted for conspiracy to

possess cocaine, possession of cocaine, and conspiracy to import cocaine. Only

Lowery elected to proceed to trial. All four of his co-defendants, pursuant to

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plea agreements with the government, entered guilty pleas on the counts of

conspiracy to possess cocaine and conspiracy to import cocaine.

The plea agreements stated that each co-defendant would cooperate fully

with the United States Attorney’s office by providing “truthful and complete

information and testimony” before the grand jury, at trial, and at any other

proceeding. In exchange for their cooperation, the government agreed to

dismiss the remaining charges and said it might, in its discretion, recommend a

“substantial assistance” sentence reduction provided for in U.S.S.G. § 5K1.1

(1997). The agreements warned that the government would not recommend a

sentence reduction or downward departure if the co-defendant provided false

testimony, and that the court was not obliged to grant the government’s motions

in any event.

Before trial, Lowery moved to suppress the testimony of his co-

defendants, relying on the interpretation of 18 U.S.C. § 201(c)(2) offered by a

panel of the Tenth Circuit in United States v. Singleton, 144 F.3d 1343 (10th

Cir. 1998), rev’d en banc, 1999 WL 6469 (10th Cir. Jan. 8, 1999). Lowery

also relied on Rule 4-3.4(b) of the Florida Bar Rules of Professional Conduct,

which states that a lawyer shall not “fabricate evidence, counsel or assist a

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witness to testify falsely, or offer an inducement to a witness . . . .” The

Singleton panel decision had already been vacated pending reconsideration en

banc, see Singleton, 144 F.3d at 1361. Indeed, that had been done just nine days

after the decision was issued. The district court recognized that Singleton was

no longer the law in the Tenth Circuit, but it nonetheless relied heavily upon

the reasoning of that vacated decision in granting Lowery’s motion to suppress

his co-defendants’ testimony. See United States v. Lowery, 15 F.Supp.2d 1348

(S.D. Fla. 1998). The government timely filed this interlocutory appeal. See 18

U.S.C. § 3731.

B. THE BURKE APPEAL

Sheldred Burke, along with Gail Henderson, Dennis Gore, Lateeal

Broughton, Rodney Paramore, Samuel Collier, Randy Deonarinesingh and

twelve other co-defendants, was indicted for bank fraud and conspiracy to

commit bank fraud. Burke, Henderson, Gore, Broughton and Paramore elected

trial by jury. The case came before the same district court judge who presided

over Lowery.

Collier and Deonarinesingh reached agreements with the government, and

pleaded guilty on the bank fraud count. Their plea agreements were similar to

5
those the government reached with the Lowery co-defendants, except they did

not provide for the dismissal of the remaining count, nor did they contain any

explicit warning that the government would not make any recommendations in

the event that the co-defendants provided false testimony. These agreements

did specify, however, that the co-defendants would cooperate by providing

“truthful information and testimony.” (emphasis added) Burke moved to

suppress the testimony of the two cooperating co-defendants, and his motion

was adopted by Henderson, Burke, Broughton and Paramore. Citing the vacated

panel decision in Singleton and its own earlier ruling on the motion to suppress

in Lowery, the district court granted the motion. After moving unsuccessfully

for reconsideration, the government appealed.

C. THE WARD APPEAL

Randall Ward, Travis Mathis, Jervaine Toote, Daniel Saunders and Celso

Pinho were indicted for conspiracy to import marijuana, importation of

marijuana, conspiracy to possess marijuana, and possession of marijuana. Ward

and Mathis opted to exercise their right to trial.

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 Pursuant to plea agreements with the government, Pinho and Saunders

pleaded guilty to importation of marijuana. As in the Lowery plea agreements,

the government agreed to dismiss the remaining charges. The agreements were

otherwise similar to the plea agreements entered into by the cooperating

witnesses in Burke, that is, each one contained no specific warning against the

provision of false testimony but did specify that the co-defendants would

provide truthful testimony.

Mathis moved to suppress the testimony of Pinho and Saunders, and Ward

adopted the motion.1 Again adopting its ruling in Lowery, the district court

granted the motion and suppressed the co-defendants’ testimony. The

government appealed.

II. DISCUSSION

We review de novo the district court’s interpretation of the relevant

statutory provision, and its application of the law to the facts in a motion to

1
Ward has been on both sides of this issue in the course of his case. Initially, he
announced his intention to enter into a plea agreement providing for a sentencing
recommendation in exchange for his cooperation with prosecutors. Given its earlier ruling on
the Singleton issue, the district court told Ward it would not accept such an agreement, and he
could either proceed to trial or enter into an agreement unconditioned upon his cooperation.
Ward elected to proceed to trial. Now, he understandably contends that the type of agreement he
unsuccessfully sought to obtain for himself cannot be used to obtain testimony against him.
Understandable as his position is, Ward has ended up on the wrong side of the issue.

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suppress. See, e.g., United States v. Antonietti, 86 F.3d 206, 207-08 (11th Cir.

1996); United States v. Phipps, 81 F.3d 1056, 1058 (11th Cir. 1996).

A. 18 U.S.C. § 201(c)(2)

As we have said, this appeal involves what has come to be known as “the

Singleton issue,” after the now-reversed Tenth Circuit panel decision in United

States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), rev’d en banc, 1999 WL

6469 (10th Cir. Jan. 8, 1999). The issue is whether plea agreements of the kind

found in this case violate the federal prohibition against bribing witnesses

contained in 18 U.S.C. § 201(c)(2).

Since the Tenth Circuit panel issued its opinion in Singleton, three circuits

have rejected its holding that government plea agreements violate § 201(c)(2).

See United States v. Haese, 162 F.3d 359, 366-68 (5th Cir. 1998); United States

v. Ware, 161 F.3d 414, 418-25 (6th Cir. 1998); United States v. Briones, 1998

WL 863026, at *2 (9th Cir. Nov. 30, 1998); United States v. Carroll, 1998 WL

801880, at *3 n.4 (4th Cir. Nov. 19, 1998) (unpublished disposition). The Tenth

Circuit itself, sitting en banc, has since reversed the panel decision. See

Singleton, 1999 WL 6469 (10th Cir. Jan. 8, 1999). It is not the law of any

circuit.

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 An overwhelming number of the district courts that have considered the

issue have also rejected the holding of the panel decision in Singleton. See, e.g.,

United States v. Johnson, 1998 WL 878557, at *1-3 (E.D. Mich. Dec. 9, 1998);

Hall v. United States, 1998 WL 842870, at *10-12 (E.D. Va. Dec. 1, 1998);

United States v. Clark, 1998 WL 896413, at *1-3 (S.D. Ohio Nov. 30, 1998);

United States v. Roque-Acosta, 1998 WL 838534, at *2-3 (D. Haw. Nov. 25,

1998); United States v. Abraham, 1998 WL 806179, at *1-7 (D. N.J. Nov. 23,

1998); United States v. White, 27 F.Supp.2d 646, 649 (E.D. N.C. 1998); United

States v. Hammer, 25 F.Supp.2d 518, 535-36 (M.D. Pa. 1998); United States v.

Crumpton, 23 F.Supp.2d 1218, 1218-19 (D. Colo. 1998); United States v.

McGuire, 21 F.Supp.2d 1264, 1266 (D. Kan. 1998); United States v. Reid, 19

F.Supp.2d 534, 535-38 (E.D. Va. 1998); United States v. Arana, 18 F.Supp.2d

715, 716-21 (E.D. Mich. 1998); United States v. Dunlap, 17 F.Supp.2d 1183,

1184-88 (D. Colo. 1998); United States v. Guillaume, 13 F.Supp.2d 1331, 1132-

35 (S.D. Fla. 1998); United States v. Eisenhardt, 10 F.Supp.2d 521, 521-22 (D.

Md. 1998); United States v. Gabourel, 9 F.Supp.2d 1246, 1246-47 (D. Colo.

1998).

Of all the federal cases, reported and unreported, that we have found

9
dealing with this issue, only one court other than the district court in this case

has agreed with the Singleton panel’s conclusion. See United States v.

Fraguela, 1998 WL 560352 (E.D. La. Aug. 27, 1998) (relying on Singleton and

the district court decision in Lowery), vacated on procedural grounds, 1998 WL

910219 (E.D. La. Oct. 7, 1998); see also United States v. Revis, 22 F.Supp.2d

1242, 1257-64 (N.D. Okla. 1998) (agreeing with the Singleton panel that a plea

agreement reached with federal prosecutors fell within the scope of § 201(c)(2),

but concluding that the general prohibition in § 201(c)(2) must give way to

other statutory provisions specifically authorizing such agreements).

In joining the cavalcade – or perhaps we should say stampede – of courts

that have considered and rejected the Singleton panel’s holding, we see no point

in replowing ground that has been throughly tilled by the other courts whose

decisions we have already cited. But we do wish to discuss the following point,

which is not given much attention in those decisions.

The best argument that the defendants can muster in their efforts to bring

government plea agreements containing cooperation clauses within the terms of

18 U.S.C. § 201(c)(2) is that the plain meaning of that statutory language

requires such a reading. The statute says “Whoever...” and that word obviously

10
includes everyone, even the government. Or so the argument goes. The reason

this “best” argument is not good enough to carry the day should itself be plain.

The statutory language in question has been on the books since 1962.

See Pub. L. 87-849, § 1(a), 76 Stat. 1119, 1120 (codified at 18 U.S.C. § 201(h))

(effective Oct. 23, 1962) (current version at 18 U.S.C. § 201(c)(2)). During the

three and a half decades of its existence, what the defendants now claim is the

plain meaning of that language has not been plain to the thousands of

prosecutors, judges, and defense lawyers who have been involved with

testimony for consideration agreements over the decades. If the language of the

statute did plainly provide that it is a crime for the government to trade leniency

for testimony, the issue would have been raised early and often. It was not.

Apparently there are only three reported instances, two circuit court decisions

and one district court decision, in which anything like this issue was raised

anywhere in the country before the panel decision in Singleton had its short-

lived existence. See United States v. Blanton, 700 F.2d 298, 310-11 (6th Cir.

1983); United States v. Barrett, 505 F.2d 1091, 1100-02 (7th Cir. 1974); United

States v. Isaacs, 347 F.Supp. 763, 767 (N.D. Ill. 1972).

These type of agreements have been used extensively in federal

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prosecutions, both long before and continually since the statutory prohibition

in question was enacted. Testimony derived through them is a commonplace

feature of trials. In drug cases, at least, it seems more usual than not for the

testimony critical to a conviction, or the expected testimony that precipitates a

guilty plea, to have stemmed directly from such an agreement. It happens

every work day in federal trial courts all around this country, and it has been

happening since the first day this language was put on the books thirty-six years

ago. If it were plain from the statutory language that entering this type of

agreement was a crime, the legions of attorneys who have represented

defendants convicted over the years because of testimony dependent upon such

illegal agreements would have raised the issue day in and day out in every

district court in every circuit in the country. They did not. The sound of their

silence is deafening. Cf. Lopez v. Monterey Cty., 119 S. Ct. 693, 702 (1999)

(“the fact that courts and parties alike have routinely assumed a need for

preclearance under the circumstances presented here supports our reading of §

5.”).

Joining all those other courts that have rejected the reasoning and holding

of the now-vacated panel decision in Singleton, we hold that agreements in

12
which the government trades sentencing recommendations or other official

action or consideration for cooperation, including testimony, do not violate 18

U.S.C. § 210(c)(2).2

B. FLORIDA BAR RULE OF PROFESSIONAL CONDUCT 4-3.4(B)

The district court also held that the plea agreements with the cooperating

co-defendants in these cases violated Rule 4-3.4(b) of the Florida Bar Rules of

Professional Conduct, and the resulting testimony was due to be suppressed for

that reason. The relevant portion of the Florida rule forbids lawyers from

“offer[ing] an inducement to a witness . . . .”

As an initial matter, it is not clear that at the time the plea agreements in

this case were negotiated, the Florida Bar Rules of Professional Conduct

applied to the conduct of the United States attorneys in this case, though the

local rules of the Southern District of Florida do incorporate them. See Local

Rules of the United States District Court for the Southern District of Florida,

2
The government also argues, but without much enthusiasm, that the
same result is compelled by our holding in Golden Door Jewelry Creations,
Inc. v. Lloyds Underwriters Non-Marine Ass’n, 117 F.3d 1328, 1335 n.2
(11th Cir. 1997), that 18 U.S.C. § 201(c)(2) applies only when the
consideration is offered or given for false testimony. We need not reach that
alternative ground of decision, however, because our principal holding
disposes of the matter.
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Rules Governing Attorney Discipline, Rule I.A (West 1998). Congress has

since indicated that state rules of professional conduct should apply to the

conduct of federal government attorneys. See Omnibus Consolidated and

Emergency Supplemental Appropriations Act, 1999, P.L. No. 105-277, § 801(a),

112 Stat. 2681 (1998) (to be codified at 28 U.S.C. § 530(b)) (“An attorney for

the Government shall be subject to State laws and rules, and local Federal court

rules, governing attorneys in each State where such attorney engages in that

attorney’s duties, to the same extent and in the same manner as other attorneys

in that State.”). That congressional directive does not take effect until April 21

of this year. Since these cases will not be tried until after that date, however, we

will treat the recent legislation as though it were fully effective now.

It is far from clear that Rule 4-3.4(b) prohibits conduct leading to the type

of agreements at issue in this case. We seriously doubt that it does, but we need

not decide that issue. Assuming for present purposes that the rule is violated

when a prosecutor promises a witness some consideration regarding charges or

sentencing in return for testimony, a state rule of professional conduct cannot

provide an adequate basis for a federal court to suppress evidence that is

otherwise admissible. Federal law, not state law, determines the admissibility

14
of evidence in federal court. “Although there is an important state interest in the

regulation of attorneys practicing within its borders, there is a competing federal

interest in the enforcement of federal criminal law.” United States v. Cantor,

897 F.Supp. 110, 115 (S.D. N.Y. 1995). The same principle applies to civil law

as well.3

When it comes to the admissibility of evidence in federal court, the

federal interest in enforcement of federal law, including federal evidentiary

rules, is paramount. State rules of professional conduct, or state rules on any

subject, cannot trump the Federal Rules of Evidence. Cf. Baylson v.

Disciplinary Bd. of Supreme Court of Pa., 975 F.2d 102, 111-12 (3d Cir. 1992)

(refusing to apply in federal court a state ethics rule that was inconsistent with

the Federal Rules of Criminal Procedure and interfered with federal grand jury

practice). Federal Rule of Evidence 402 provides:

All relevant evidence is admissible, except as other-
wise provided by the Constitution of the United States, by
Act of Congress, by these rules, or by other rules prescribed

3
Our decision in Golden Door Jewelry is not to the contrary. In that case we merely held
that it was not an abuse of discretion for a district court to refuse to strike pleadings as a sanction
for one party’s having paid some fact witnesses to testify in contravention of this same Florida
rule of professional conduct. See 117 F.3d at 1335 n.2. The district court’s decision to exclude
the resulting testimony from evidence was not appealed, and we did not decide whether
excluding that testimony was an abuse of discretion.

15
 by the Supreme Court pursuant to statutory authority.

That is an exclusive list of the sources of authority for exclusion of evidence in

federal court. State rules of professional conduct are not included in the list.4

Local rules of federal courts are not listed in Rule 402, either. As a result,

otherwise admissible evidence cannot be excluded based upon local rules. For

that reason, the Southern District of Florida’s adoption of the State of Florida’s

professional conduct rules does not affect our analysis or the result. Acts of

Congress are included in the Rule 402 list, of course, because Congress has the

authority to exclude from evidence in federal courts anything it pleases, subject

only to the limits placed upon it by the Constitution. The question is whether

Congress’ recent statutory directive that state laws and rules governing attorney

conduct shall apply to federal government attorneys “to the same extent and in

the same manner as other attorneys in that State,” P.L. No. 105-277, § 801(a),

supra, is aimed at admission of evidence in federal court. In other words, did

4
The Florida courts themselves have treated the state Rules of Professional Conduct as
irrelevant to admissibility decisions. See, e.g., Suarez v. State, 481 So.2d 1201, 1206 (Fla. 1985)
(“‘The admissibility of evidence in a court of law . . . is normally determined by reference to
relevant constitutional and statutory provisions, applicable court rules and pertinent common-law
doctrines. Codes of professional conduct play no part in such decisions.’”) (quoting People v.
Green, 405 Mich. 273, 293-94, 274 N.W.2d 448, 454 (Mich. 1979)). That state law reinforces
our decision, but is not necessary to it. Even if Florida excluded from its courts any evidence
resulting from a violation of its professional conduct rules, we would still hold that those rules
can have no role in determining whether evidence is admissible in federal court.

16
Congress intend by that enactment to turn over to state supreme courts in every

state – and state legislatures, too, assuming they can also enact codes of

professional conduct for attorneys – the authority to decide that otherwise

admissible evidence cannot be used in federal court? We think not.

There is nothing in the language or legislative history of the Act that

would support such a radical notion. Making state prescribed professional

conduct rules applicable to federal attorneys is one thing. Letting those rules

govern the admission of evidence in federal court is another. If Congress wants

to give state courts and legislatures veto power over the admission of evidence

in federal court, it will have to tell us that in plain language using clear terms.

III. CONCLUSION

We REVERSE the district court’s orders granting the motions to suppress,

and REMAND for proceedings consistent with this opinion.

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