United States v. Willie J. Richardson ( 1999 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4139
WILLIE JAMES RICHARDSON, a/k/a Riz,
a/k/a Raheem,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-97-121)
Argued: May 7, 1999
Decided: September 3, 1999
Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge,
and MOON, United States District Judge for the
Western District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Chief Judge Wilkinson and Judge Moon joined.
_________________________________________________________________
COUNSEL
ARGUED: Martin Gregory Bahl, FEDERAL PUBLIC DEFEND-
ER'S OFFICE, Baltimore, Maryland, for Appellant. Laura Marie
Everhart, Assistant United States Attorney, Norfolk, Virginia, for
Appellee. ON BRIEF: James Wyda, Acting Federal Public Defender,
Beth M. Farber, Acting Federal Public Defender, Baltimore, Mary-
land, for Appellee. Helen F. Fahey, United States Attorney, Norfolk,
Virginia, for Appellee.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
Willie Richardson challenges his convictions for conspiring to dis-
tribute cocaine and for possession of cocaine with the intent to distrib-
ute, contending that the government's testimony against him was
improperly obtained from coconspirators by offering them leniency,
immunity, and promises not to prosecute other crimes, in violation of
18 U.S.C. § 201(c)(2) (prohibiting a person from offering "anything
of value" in exchange for testimony), and that the testimony so
obtained therefore should have been excluded. Because we conclude
that § 201(c)(2) does not apply to the government when acting in
accordance with its statutory authority and because we reject Richard-
son's other assignments of error, we affirm.
I
In November 1997, Richardson was tried on one count of conspir-
acy to distribute and possess with the intent to distribute cocaine and
cocaine base and eight counts of possession with the intent to distrib-
ute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846. The govern-
ment's case against Richardson consisted primarily of testimony from
individuals who had participated in the cocaine distribution business
with Richardson and who had entered into plea agreements with the
government to give testimony.
Alonda Ervin testified that Richardson had hired her to transport
cocaine between New York and Virginia Beach, paying her $1,000
per trip. After she was arrested by the police with approximately 12
"bricks" of cocaine, she entered into a plea agreement which required
her, in her words, "to cooperate fully with the government on all
bases." She testified that she was hoping to have her sentence further
reduced, at least in part as a reward for giving testimony in Richard-
son's trial.
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Michael McClean testified that, at the instruction of Richardson, he
and Ervin transported approximately four to five kilograms of cocaine
to South Carolina. McClean testified pursuant to a plea agreement
that required him to give testimony in Richardson's trial. He stated
that he negotiated a plea agreement in order to obtain a lesser prison
sentence and that he understood that the prosecutor could arrange for
a further reduction in his sentence after Richardson's trial.
Erica Lee testified that, while she had no knowledge of any drug
activity, she had assisted Richardson in renting cars on multiple occa-
sions and that she had later assisted him in buying a car which was
put in her name. Lee signed an agreement with prosecutors providing
that in exchange for her testimony, she would not be prosecuted for
any past criminal violations.
Anthony Boddie testified that he was in the narcotics business with
Richardson and that he made trips to pick up and deliver cocaine and
money for Richardson. Boddie testified pursuant to a plea agreement
on the understanding that he would "get substantial assistance."
Jonathan Cousar testified that he sold cocaine in Norfolk and that
he frequently obtained his crack cocaine from Richardson. Cousar tes-
tified pursuant to a plea agreement which, in his words, required him
"to testify against whoever didn't plead guilty," including Richardson.
He received immunity for his testimony, and he believed that the
United States Attorney would make a motion to reduce his sentence
further after the Richardson trial.
Cynthia Pemberton testified, pursuant to a plea agreement, to drug
activity with Cousar and others. At the time she testified, she had not
yet been sentenced and understood that she was testifying in exchange
for a potential reduction in her sentence.
At the close of the government's case, the court dismissed two
possession-with-intent-to-distribute counts and the jury convicted
Richardson on all remaining counts. The court attributed over 137
kilograms of cocaine and over 4 kilograms of crack cocaine to Rich-
ardson and sentenced him to life imprisonment.
This appeal followed.
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II
For his principal argument on appeal, Richardson contends that the
government's testimony against him was obtained from co-
conspirators in exchange for the government's promises to seek or to
consider seeking more lenient sentences, for immunity, or for the
promise not to prosecute them for other crimes, in violation of 18
U.S.C. § 201(c)(2). He argues that without testimony so obtained, he
would not have been convicted. Section 201(c)(2) provides:
Whoever . . . directly or indirectly, gives, offers or prom-
ises 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 pro-
ceeding, 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.
Richardson argues that when prosecutors offered witnesses leniency,
immunity, and promises not to prosecute in return for testimony
against him, the prosecutors offered something of value "for or
because of" sworn testimony before a federal court. Accordingly, he
contends, the evidence should have been excluded. The question this
argument raises is whether the term "whoever," as used in the statute,
includes the United States government when it acts through its agents
pursuant to statutory authorization.
Richardson's counsel ably argued that the word "whoever" in the
statute is not qualified to exclude the government and that therefore
the Supreme Court's decision in Nardone v. United States, 302 U.S.
379 (1937), which held that "person" when used without qualification
in a particular statute included the government, should govern this
case. In Nardone, the Supreme Court interpreted § 605 of the Federal
Communications Act of 1934, which prohibits any"person" from
intercepting and divulging any communication, and concluded that
the term "person" applied to the United States acting through its law
enforcement agents. The Court reasoned that Congress, in enacting
§ 605, had chosen to restrict federal agents as a matter of policy:
"Congress may have thought it less important that some offenders
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should go unwhipped of justice than that officers should resort to
methods deemed inconsistent with ethical standards and destructive of
personal liberty." Nardone, 302 U.S. at 383. The Court noted, how-
ever, that while the Congressional policy evident in§ 605 of the Fed-
eral Communications Act required that the general term "person"
include the government acting through its agents, such general terms
would be interpreted as excluding the government where the statute,
"if not so limited, would deprive the sovereign of a recognized or
established prerogative title or interest," id. (footnote omitted), or
where including the government "would work obvious absurdity," id.
at 384. Our task in this case, therefore, is to decide whether interpret-
ing the general term "whoever" in § 201(c)(2) to include the United
States would effectuate a Congressional policy as in Nardone, or
whether it would instead deprive the government of a recognized pre-
rogative or work an absurdity.
Congress has enacted a number of statutes authorizing and encour-
aging the United States, in its capacity as prosecutor, to offer leniency
and immunity in return for testimony. For example, 18 U.S.C.
§ 3553(e) provides, "Upon motion of the Government, the court shall
have the authority 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." (Emphasis added). Consistent with this
provision, Congress has instructed the United States Sentencing Com-
mission to "assure that the [sentencing] guidelines reflect the general
appropriateness of imposing a lower sentence than would otherwise
be imposed, including a sentence that is lower than that established
by statute as a minimum sentence, 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.§ 994(n) (emphasis
added); see also Fed. R. Crim. P. 35(b). Substantial assistance in the
"prosecution" of another person -- as distinguished from the "investi-
gation" of another person -- includes the giving of testimony. While
assistance in prosecution could conceptually include other services,
the principal service that Congress expected a felon (i.e. one who is
looking for a reduction in his own sentence) to render is the provision
of truthful testimony. It is apparent that 18 U.S.C.§ 3553(e) and 28
U.S.C. § 994(n) contemplate the government's granting of leniency to
persons found guilty of crimes in exchange for testimony against oth-
5
ers, and these statutes express Congress' intent to authorize such
exchanges to promote law enforcement and justice. Moreover, these
prosecutorial mechanisms are often coupled with plea agreements,
which have long been accepted as proper tools of law enforcement.
See, e.g., Fed. R. Crim. P. 11(e) (providing plea agreement proce-
dures); 28 U.S.C. § 994(a)(2)(E) (directing the Sentencing Commis-
sion to promulgate policy statements for accepting and rejecting plea
agreements); U.S.S.G. § 6B1 (regulating plea agreements).
Congress has also enacted 18 U.S.C. §§ 6002-6003, which allow
prosecutors to seek immunity for witnesses in order to obtain testi-
mony in a judicial proceeding. Immunity statutes such as these "have
historical roots deep in Anglo-American jurisprudence," dating back
at least to 1710 England and have long existed in every American
jurisdiction. Kastigar v. United States, 406 U.S. 441, 445-47 & n.13
(1972). "The existence of these statutes reflects the importance of tes-
timony, and the fact that many offenses are of such a character that
the only persons capable of giving useful testimony are those impli-
cated in the crime." Id. at 446. These immunity statutes are "essential
to the effective enforcement of various criminal statutes." Id. at 447.
It is thus clear that Congress has followed a long-standing and con-
sistent policy of authorizing and encouraging grants of leniency and
immunity, in conjunction with plea agreements, in exchange for truth-
ful testimony. It is against this backdrop that we must interpret the
term "whoever" in 18 U.S.C. § 201(c)(2).
The juxtaposition of § 201(c)(2) with these other law enforcement
statutes presents us with the "classic judicial task of reconciling many
laws enacted over time, and getting them to `make sense' in combina-
tion." United States v. Fausto, 484 U.S. 439, 453 (1988). In this
instance, we can readily reconcile these statutes by interpreting "who-
ever" in § 201(c)(2) in accordance with the rule stated in Nardone that
a general term excludes the United States when such exclusion is nec-
essary to avoid depriving the sovereign of a recognized prerogative
or creating an obvious absurdity. To interpret § 201(c)(2) to include
the United States would implicitly repeal other statutes and rob the
government of its long-standing prerogatives to use immunity and
leniency in plea bargaining to obtain truthful testimony from one
criminal against another -- testimony that in many cases is essential
6
to the enforcement of law and the promotion of justice. See United
States v. Haese, 162 F.3d 359, 367 (5th Cir. 1998) ("Congress did not
intend for section 201(c)(2) to be used when prosecutors offer lenity
for a witness' truthful testimony. To interpret section 201(c)(2) in any
other way would apply shackles to the government in its pursuit to
enforce the law" (citation omitted)). Interpreting § 201(c)(2) to apply
to the government would also work an obvious absurdity as it would
lead to the conclusion that Congress, through statutes such as 18
U.S.C. § 3553(e), 28 U.S.C. § 994(n), and 18 U.S.C. §§ 6002-6003,
is authorizing practices that it has prohibited in 18 U.S.C. § 201(c)(2).
Accordingly, we hold that the term "whoever" as used in § 201(c)(2)
does not include the United States acting in accordance with its statu-
tory authority to use immunity, leniency, and plea agreements to
obtain truthful testimony.
In construing § 201(c)(2) as we do, we join the unanimous conclu-
sion of circuit courts that have ruled over the past year that the gov-
ernment does not violate § 201(c)(2) by granting immunity or
leniency or entering into plea agreements to obtain testimony. See
United States v. Lara, No. 97-2215, 1999 WL 431140 (1st Cir. June
30, 1999); United States v. Stephenson, No. 98-1490, 1999 WL
437082 (2nd Cir. June 30, 1999); United States v. Haese, 162 F.3d
359, 366-68 (5th Cir. 1998); United States v. Webster, 162 F.3d 308,
357 (5th Cir. 1998); United States v. Ware, 161 F.3d 414, 418-25 (6th
Cir. 1998); United States v. Condon, 170 F.3d 687, 689 (7th Cir.
1999); United States v. Johnson, 169 F.3d 1092, 1097-98 (8th Cir.
1999); see also United States v. Flores, 172 F.3d 695, 699-700 (9th
Cir. 1999); United States v. Singleton, 165 F.3d 1297, 1299-1302
(10th Cir. 1999) (en banc); United States v. Lowery, 166 F.3d 1119,
1123-24 (11th Cir. 1999); United States v. Ramsey, 165 F.3d 980,
986-91 (D.C. Cir. 1999).
Accordingly, we conclude that the government has not violated 18
U.S.C. § 201(c)(2) in this case in obtaining and presenting the testi-
mony of Richardson's coconspirators against him.
III
Richardson next contends that the district court committed revers-
ible error by failing to ensure that he knowingly waived his right to
7
testify at trial. After the government had presented its case-in-chief,
Richardson's attorney addressed the court, stating:
My client has indicated to me, despite my advice, that he
intends to testify. He's also indicated to me several different
ways that he intends to testify, and I am uncomfortable not
only from a tactical standpoint, but from an ethical stand-
point.
Now, I realize he has an absolute right to testify. I can't pre-
vent him from testifying, nor can the court prevent him from
testifying. I simply wanted to put that matter on the record.
I am still hopeful I will be able to persuade him otherwise,
but I just wanted to bring that matter to the court's attention.
The court then addressed Richardson as follows:
Mr. Richardson, as a defendant in this case, you have a con-
stitutional right to remain silent. You are not called upon to
produce any evidence. That's your right.
* * *
Do you understand if you choose to testify, you have a right
to testify, but you also have a responsibility not to get on the
stand and commit perjury? Do you understand that?
Richardson answered affirmatively.
Richardson did not testify at his trial, and the court did not inquire
as to why he chose not to testify. Richardson did, however, testify at
his sentencing, and, among other complaints, he stated that the only
reason that he did not take the stand during his trial was that his attor-
ney erroneously informed him that his mother did not want him to tes-
tify. Richardson explained, "The truth was I was misled because I am
always going to respect my mother."
Richardson's argument is without merit. He was clearly advised
about his constitutional rights both to testify and not to testify, even
8
though a trial court generally has no duty to inform a defendant of his
right to testify. See United States v. McMeans , 927 F.2d 162, 163 (4th
Cir. 1991). When Richardson chose, on his attorney's recommenda-
tion, not to take the stand, the district court was justified in assuming
that this was an appropriate strategic decision. The court had no
responsibility to investigate whether the true reason behind Richard-
son's decision was a request falsely attributed to his mother. "Because
[Richardson] knew that he could testify if he wanted to, his failure to
testify . . . cannot be the product of ignorance of his right. Instead, his
failure to testify was of his own choosing; he cannot now approach
the court and complain of the result of his decision." Id.
IV
Finally, Richardson contends that his attorney rendered him inef-
fective assistance by failing vigorously to challenge the amount of
drugs attributed to him by the various witnesses who testified that
they dealt with him.
A claim of ineffective assistance of counsel should be raised by "[a
habeas corpus] motion under 28 U.S.C. § 2255 in the district court
and not on direct appeal, unless it `conclusively appears' from the
record that defense counsel did not provide effective representation."
United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994) (cita-
tions omitted). The record before us indicates that a more vigorous
cross-examination would not have yielded Richardson any benefit. It
appears that it would have been impossible to disprove attribution of
enough drugs to make Richardson eligible for anything less than a
mandatory life sentence. Counsel would have had to disprove over
90% of the drug amount found by the court in order to give Richard-
son even a chance of receiving a lesser sentence. We cannot conclude
from this record that it "conclusively appears" that Richardson was
rendered the ineffective assistance of counsel.
The judgment of the district court is
AFFIRMED.
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