As correctly argued by Ms. Singleton, "whoever" is a broad term which by its ordinary definition would exclude no one. Indeed, if one were to take the word at face value, defendant's argument becomes colorable, at least. However, the defendant's approach, while facially logical, ignores a crucial point that must be considered in any attempt to apply the statute to the issues of this case. She argues the breadth of the word "'whoever' includes within its scope the assistant United States attorney who offered Douglas something of value in exchange for his testimony." To begin the parsing of the statute with this assumption, however, ignores a fundamental fact: the capacity in which the government's lawyer appears in the courts.

The prosecutor, functioning within the scope of his or her office, is not simply a lawyer advocating the government's perspective of the case. Indeed, the prosecutor's function is far more significant. Only officers of the Department of Justice or the United States Attorney can represent the United States in the prosecution of a criminal case. 28 U.S.C. §§ 516, 547 (1994); United States v. Navarro, 959 F. Supp. 1273, 1277 (E.D. Cal. 1997), rev'd on other grounds, 1998 WL 809553 (9th Cir. Nov. 24, 1998). Indeed, a federal court cannot even assert jurisdiction over a criminal case unless it is filed and prosecuted by the United States Attorney or a properly appointed assistant. See United States v. Providence Journal Co., 485 U.S. 693, 699-708 (1988) (dismissing petition for certiorari for lack of jurisdiction where the petition was filed by a government lawyer acting without the authority to do so); United States v. Durham, 941 F.2d 886, 892 (9th Cir. 1991) (whether Special AUSA had been properly appointed went to jurisdiction of the district court). Therefore, the government's sovereign authority to prosecute and conduct a prosecution is vested solely in the United States Attorney and his or her properly appointed assistants. Of course, it cannot be otherwise because the government of the United States is not capable of exercising its powers on its own; the government functions only through its officers and agents. We thus infer in criminal cases that an Assistant United States Attorney, acting within the scope of authority conferred upon that office, is the alter ego of the United States exercising its sovereign power of prosecution. Hence, in the attempt to apply section 201(c)(2), the United States and the Assistant United States Attorney cannot be separated. Indeed, the alter ego role⁽¹⁾ of the prosecutor is not unusual, for in a similar case, the Sixth Circuit has noted:

When an assistant United States Attorney (AUSA) enters 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 § 5K1.1, does so as the government.

United States v. Ware, 161 F.3d 414, 1998 WL 830587, *8 (6th Cir. Dec. 3, 1998).

Put into proper context, then, the defendant's argument is: in a criminal prosecution, the word "whoever" in the statute includes within its scope the United States acting in its sovereign capacity. Extending that premise to its logical conclusion, the defendant implies Congress must have intended to subject the United States to the provisions of section 201(c)(2), and, consequently, like any other violator, to criminal prosecution. Reduced to this logical conclusion, the basic argument of the defendant is patently absurd.

There is even a more fundamental reason for arriving at the same conclusion, however. Although Congress may, by legislative act, add to or redefine the meaning of any word, it did not do so in the passage of section 201(c)(2). Therefore, we must presume it intended to employ the common meaning of the word. The word "whoever" connotes a being. See Webster's Third New International Dictionary 2611 (1993) (defining "whoever" as "whatever person: any person" (emphasis added)). The United States is an inanimate entity, not a being. The word "whatever" is used commonly to refer to an inanimate object. See id. at 2600 (defining "whatever" as "anything that: everything that" (emphasis added)). Therefore, construing "whoever" to include the government is semantically anomalous. Looking beyond definitions, though, there are rules of statutory construction that will lead to the same conclusion.

Statutes of general purport do not apply to the United States unless Congress makes the application clear and indisputable. In The Dollar Savings Bank v. United States, 86 U.S. 227 (1873), the Court instructed:

It is a familiar principle that the King is not bound by any act of Parliament unless he be named therein by special and particular words. The most general words that can be devised (for example, any person or persons, bodies politic or corporate) affect not him in the least, if they may tend to restrain or diminish any of his rights and interests. . . . The rule thus settled respecting the British Crown is equally applicable to this government, and it has been applied frequently in the different States, and practically in the Federal courts. It may be considered as settled that so much of the royal prerogatives as belonged to the King in his capacity of parens patriae, or universal trustee, enters as much into our political state as it does into the principles of the British constitution.

Id. at 239 (footnote omitted); see also 8 Matthew Bacon, A New Abridgment of the Law 92 (1869) ("[W]here a statute is general, and thereby (a) any prerogative, right, title, or interest is divested or taken from the king, in such case the king shall not be bound, (b) unless the statute is made by express words to extend to him."); Henry Campbell Black, The Construction and Interpretation of the Laws 94-97 (2d ed. 1911) (same). The Court revisited the concept in Nardone v. United States, 302 U.S. 379, 383-84 (1937), when it held this canon of construction generally applies when failure to limit the application of a statute would "deprive the sovereign of a recognized or established prerogative title or interest" or "where a reading which would include [the government] would work obvious absurdity."

We have already established the absurdity in trying to apply section 201(c)(2) to the sovereign's prosecutorial powers, and a number of courts have agreed for an abundance of reasons we also find persuasive. See, e.g., United States v. Haese, ___ F.3d ___, 1998 WL 842185, at *8 (5th Cir. Dec. 7, 1998); Ware, 161 F.3d 414, 1998 WL 830587, at *9; United States v. White, ___ F. Supp. 2d ___, 1998 WL 758830, at *2-3 (E.D.N.C. 1998); United States v. Hammer, ___ F. Supp. 2d ___, 1998 WL 725211, at *17 (M.D. Pa. 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, 717-19 (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, 1332-34 (S.D. Fla. 1998); United States v. Eisenhardt, 10 F. Supp. 2d 521, 521-22 (D. Md. 1998); United States v. Barbaro, 1998 WL 556152, at *3 (S.D.N.Y. Sept. 1, 1998). But see United States v. Revis, ___ F. Supp. 2d ___, 1998 WL 713229 (N.D. Okla. 1998); United States v. Fraguela, 1998 WL 560352 (E.D. La. Aug. 27, 1998).

The next question, then, is whether applying the statute to the government would deprive the sovereign of a recognized or established prerogative, title, or interest. The answer to that question is, inescapably yes.

Petitioner claims that the prosecutor's use of peremptory challenges to strike all three black jurors on the venire, resulting in the selection of an all-white jury, violated Batson v. State of Kentucky, 476 U.S. 79 (1986). Petitioner exhausted this claim in the state courts; it is not procedurally defaulted. Johnson's conviction was on direct appeal when the Supreme Court issued Batson.⁽²⁾ Accordingly, the Oklahoma Court of Criminal Appeals (OCCA) remanded the Johnson proceeding for an evidentiary hearing on his claim that race discrimination tainted the jury selection process. At the hearing, petitioner established that the prosecution exercised its peremptory challenges in a manner that gave rise to the inference that it "exclude[d] the [black] venire members from the petit jury on account of their race." United States v. Johnson, 941 F.2d 1102, 1107 (10th Cir. 1991). The defendant therefore made a prima facie case of a Batson violation. SeeBatson, 476 U.S. at 97. The burden then shifted to the prosecutor to present a "neutral explanation for his action." Id. at 100. Following the prosecutor's explanations, the trial judge concluded that "the State has met its burden of proof and . . . there was no purposeful discrimination in the exercise of [] peremptory challenges against black persons." Tr. of Hr'g Nov. 13, 1986, at 34 (hereinafter Batson Tr.).⁽³⁾

On habeas review, we presume the state court's factual determinations to be correct unless we find that they are not fairly supported by the record. See Sena v. New Mexico State Prison, 109 F.3d 652, 653 (10th Cir. 1997). In addition, Batson cautions us to review with deference the ultimate factual finding that there was no intentional discrimination. See Batson, 476 U.S. at 98 n.21.

Petitioner now offers troubling evidence of the pretextual character of the prosecutor's ostensibly neutral reasons. A black juror and a white juror shared similar characteristics; the prosecutor, relying on those characteristics, struck only the black juror. Cf. Turner v. Marshall, 121 F.3d 1248, 1251-52 (9th Cir. 1997) (finding allegedly race-neutral reasons for peremptory challenge pretextual by comparing shared characteristics of struck minority juror and empaneled nonminority juror). Our review of the record, however, shows that petitioner did not raise this pretext argument at the evidentiary hearing on the Batson claim. Therefore, although it appears that the record may provide support for petitioner's pretext argument, we cannot reverse the state court's factual findings at this stage. To do so would require us to hold that the Batson inquiry imposes an independent duty on the trial court to pore over the record and compare the characteristics of jurors, searching for evidence of pretext, absent any pretext argument or evidence presented by counsel. We cannot reconcile such an approach with the Supreme Court's directive that "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Purkett v. Elem, 514 U.S. 765, 768 (1995).
 

Cox also asserts that the Arkansas capital murder statute violates the Eighth Amendment because it does not give the jury the option of mercy. The statute contains the mandatory language that the jury "shall impose a sentence of death" if it finds beyond a reasonable doubt that aggravating factors exist and outweigh all mitigating circumstances found to exist. Ark. Code Ann. 5-4-603(a). Death penalty statutes having some "mandatory" aspects have been upheld as constitutional. See, e.g., Jurek v. Texas, 428 U.S. 262 (1976) (finding constitutional death penalty statutes that  dontained mandatory language but that allowed the jury to consider mitigating factors); Blystone v. Pennsylvania, 494 U.S. 299 (1990) (same); and Boyde v. California, 494 U.S. 370 (1990) (same). We approved of the "shall impose" language in the Arkansas statute in Singleton v. Lockhart, 962 F.2d 1315, 1323 (8th Cir. 1992).

Here, the jury was given room for mercy. It was instructed that it could return a sentence of death only if it unanimously found three things: 1) that one or more aggravating factors existed; 2) that such aggravating circumstances outweighed, beyond a reasonable doubt, any mitigating circumstances found to exist; and 3) that the aggravating circumstance justified beyond a reasonable doubt, the sentence of death. Defense counsel's closing argument emphasized the fact that the jury had the option of a sentence of life without parole. In addition, at the hearing in district court, counsel conceded that the jury had actually been instructed with use of the word "may." Under the circumstances, we find no constitutional error.

Next, Cox claims that the jury used an improper aggravator to sentence him to death. One of the statutory aggravators used was that "the person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim." Ark. Code Ann.  5-4-604 (4). Cox argues that use of each homicide as an aggravating circumstance of the other fails to satisfy the narrowing function and constitutes "double counting." As noted above, the Arkansas scheme sufficiently narrows the death eligible class. We approved use of this aggravator in Perry, 871 F.2d at  1392. Cox's double counting argument is also foreclosed by Perry, 871 F.2d at 1393. Duplication of an element of a capital offense by one or more aggravating circumstances does not render the Arkansas death penalty scheme unconstitutional. See Wainwright v. Lockhart, 80 F.3d 1226, 1232 (8th Cir.), cert. denied, 117 S. Ct. 395 (1996).
 

Knox v Iowa  Eighth Circuit affirms on the questions of "whether his constitutional  rights were violated by the failure of the jury foreman to disclose certain information or by the failure of the prosecution to disclose exculpatory evidence"

Muhleisen v. Ieyoub Fifth Circuit holds jury instruction on guilt was not constitutionally infirm.  Although the court holds Cage v. Louisanna retroactively applicable, it holds the AEDPA bars relief.

 
There are three phrases in this instruction, each emphasized above, which are problematic from a Due Process perspective. The most important is what in prior decisions we have described as an "articulation requirement," i.e. the description that a reasonable doubt is one for which you could give good reason. See Humphrey v. Cain, 120 F.3d 526, 531 (5th Cir. 1997), reasoning adopted inHumphrey v. Cain, 138 F.3d 552 (5th Cir. 1998)(en banc), cert. denied, No. 98-55, 1998 WL 396303 (Oct. 13, 1998). The others troublesome phrases are the descriptions "grave uncertainty" and "actual or substantial doubt." See Cage v. Louisiana, 498 U.S. 39, 40 (1990).

Muhleisen filed his petition for a writ of habeas coprus after Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). That statute alters the standards and scope of our review in habeas corpus petitions filed after AEDPA's effective date. See Nobles v. Johnson, 127 F.3d 409, 415 (5^th Cir. 1997) (applying AEDPA standards to a habeas petition filed after AEDPA's effective date of April 24, 1996). Applying these statutory amendments to 28 U.S.C. § 2254(d)(1) , we can grant a writ of habeas corpus only if the state court's determination of law, on a de novo review, violated Supreme Court precedent in existence at the time of the petitioner's conviction. See Drinkard v. Johnson, 97 F.3d 751, 768 (5^th Cir. 1996), overruled on other grounds, Lindh v. Murphy, 521 U.S. 320 (1997).

We cannot say that this has occurred. The Supreme Court handed down Cage v. Louisiana, 498 U.S. 39 (1990), upon which petitioner relies, a little over thirteen years after petitioner's conviction became final.⁽²⁾ That was the first, and so far the only, time the Supreme Court has held a definition of reasonable doubt to have violated the Due Process Clause. See Victor v. Nebraska, 511 U.S. 1, 5 (1994). We are therefore bound by AEDPA to deny Muhleisen's petition for a writ of habeas corpus.⁽³⁾

Kriser v. Johnson  Fifth Circuit strikes this habeas petition as it was filed more then one year after  the passage of the AEDPA.

Dulany v. Carnahane Eighth Circuit denies relief on claims "the defendant state prison officials have been deliberately indifferent to their serious medical needs in violation of their constitutional rights and rights secured under the Americans with Disabilities Act (ADA), 42 U.S.C. secs. 12101- 12213."

Jones v. Garner Eleventh Circuit examines the scope of Morales v. California.  Addressing the "claim that the retroactive application of amendments to the Georgia regulations governing parole consideration, Ga. Comp. R. & Regs. r. 475-3-.05.(2) (1986), violated the Ex Post Facto Clause of Article I, § 10 of the United States constitution., the panel holds that the Supreme Courts holding in "California Dep't of Corrections v. Morales, 514 U.S. 499 (1995), in which it held that the retroactive application of a legislative amendment to the California parole regulations that decreased the frequency of parole suitability hearings in certain circumstances did not represent an ex post facto violation, the Board concluded that Akins had been overruled and scheduled Jones' next hearing for 2003 pursuant to the rule promulgated in 1986. The district court agreed that Morales overruled Akins, and granted summary judgment to the defendants. We find that Morales reinforced our holding in Akins, and pursuant to Morales and Akins, we reverse."

 INMATES WHO CANNOT speak or understand English well do not have a right to prison-provided interpreters when appearing for parole and disciplinary hearings and medical care, the U.S. Circuit Court of Appeals for the District of Columbia ruled on Dec. 29. Franklin v. District of Columbia, No. 97-7162. . . .A class of Spanish-speaking prisoners in the District of Columbia corrections system sued for alleged violations of their Fifth Amendment rights to due process and their Eighth Amendment guarantees against cruel and unusual punishment. The district court ruled in their favor, assigning liability to the district and ordering "sweeping changes"  in the way the city operates its prisons. . . . The appeals panel found that because the U.S. Parole Commission took over the District's Board of Parole under a 1997 law and because the inmates failed to name the U.S. government in their suit, the district court's decision must be vacated. The court also found that the inmates failed to prove that a named class member who was convicted of a misdemeanor had, in fact, suffered an injury because of a lack of English proficiency, which is required to establish standing.
 

STATEMENTS MADE BY a complainant to her friend earlier on the day of the alleged rape were not excludable under the rape-shield statute, the Michigan Supreme Court ruled on Dec. 28. People v. Ivers, No.111177.  Affirming, the court held that statements that do not refer to the victim's sexual conduct, or opinion or reputation evidence of the victim's conduct, fall outside the rape-shield statute. Justice Michael F. Cavanagh said, "The important distinction...is not so much 'statements' versus 'conduct' as whether the statements do or do not amount to or reference specific conduct."  Michael Patrick Ivers was convicted of third-degree criminal sexual conduct. At trial, he sought to introduce testimony from the complainant's friend regarding a conversation they had had on the day of the alleged rape.  According to the witness, the complainant had told her friend that she knew that she was going to college and that she was ready to have sex. The trial court ruled that the testimony was inadmissible under the rape-shield statute.

From one of the best resources for information on capital puishment, the Death Penalty Information Center at http://essential.org/dpic:

All charges were dropped in the death penalty prosecution of Shareef Cousin in Louisiana. Cousin had been convicted and sentenced to death for a murder in New Orleans when Couisin was 16 years old. The Louisiana Supreme Court overturned his conviction because of improper evidence and the District Attorney decided on January 8 not to pursue the case further. Cousin had maintained that he was at a city recreation department basketball game at the time of the crime and his coach testified that he dropped him off at home just 20 minutes after the slaying. Cousin is the 75th person to be exonerated after being sentenced to death since 1973. He remains incarcerated on unrelated charges.

A discussion list for legal professionals doing capital litigation is in the beginning stages.  The hope of the new list is to get some cross-pollination of ideas, as well as to give  those practitioner's who may not be at a public defender's office or similar non-profit a forum to seek advice and bounce ideas around. The list is private, and moderated only to try to weed out prosecutors and law enforcement.
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ISSN: 1523-6684   Volume II, issue 1