USA. v. Anty, 99-4077

Citation203 F.3d 305
Decision Date03 December 1999
Docket NumberCR-98-7-F,No. 99-4077,99-4077
Parties(4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. MACULA ANTY, Defendant-Appellee. (). . Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh.

James C. Fox, District Judge.

COUNSEL ARGUED: Anne M. Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellant. Rosemary Godwin, Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney, Michael G. James, Assistant United States Attorney, Raleigh, North Carolina, for Appellant.

Before NIEMEYER and WILLIAMS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge Niemeyer wrote the opinion, in which Judge Williams and Senior Judge Hamilton joined.

OPINION

NIEMEYER, Circuit Judge:

After Macula Anty was convicted of conspiring to distribute cocaine, possession of cocaine with intent to distribute, and distribution of cocaine, she made a motion for a mistrial, contending that during her trial the government improperly introduced the testimony of a paid informant, in violation of 18 U.S.C. § 201(c)(2) (prohibiting a person from giving "anything of value to any person, for or because of [that person's] testimony"). The district court agreed that the government's use of the paid informant's testimony against Anty violated § 201(c)(2) and granted her motion for a mistrial. On the government's appeal, we conclude that § 201(c)(2) does not prohibit the government from using the testimony of a paid informant and therefore reverse and remand this case for further proceedings.

I

Shortly before Anty's trial on drug charges, Anty filed a motion to suppress the testimony of two potential government witnesses who had entered into plea agreements with the government. She based her motion on the decision in United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), rev'd en banc, 165 F.3d 1297 (1999), which held that government promises of leniency to a witness in exchange for testimony violated 18 U.S.C. § 201(c)(2). The district court denied Anty's motion with leave to renew it in the event of a conviction.

At trial, Anty objected to the testimony of another government witness, Selma Jerome, because he was a paid informant whose arrangement with local law enforcement authorities required him to be available to testify at trial. The district court permitted Jerome to testify but stated that it would revisit the issue if Anty were convicted. Following her conviction, Anty filed a post-trial motion for a "mistrial," arguing that the testimony of Jerome and of an accomplice witness should have been suppressed because it was obtained in violation of 18 U.S.C. § 201(c)(2). While the district court rejected Anty's claim that the accomplice witness's testimony should have been suppressed, it concluded that Jerome's testimony had been obtained in violation of 18 U.S.C. § 201(c)(2) and should have been suppressed. The court then invited the parties to brief whether it should order a mistrial.

During the trial, Jerome acknowledged that he was a paid informant who had set up the sting transaction on November 7, 1997, for which Anty was convicted. He testified that Anty personally handled a kilogram of cocaine on that date. Anty's counsel cross-examined Jerome -as well as local police officers who had reached the arrangement with Jerome -about the compensation that Jerome received for his assistance and used the evidence of those payments to attack Jerome's credibility in closing arguments before the jury. The district court instructed the jury with respect to the payments that:

The testimony of an informant, someone who provides evidence against someone else for money . . . or for other personal reason or advantage, must be examined and weighed by the jury with greater care than the testimony of a witness who is not so motivated. The jury must determine whether the informer's testimony has been affected by self-interest, or by the agreement he has with the government, or his own interest in the outcome of this case, or by prejudice against the defendant.

The record reveals that Jerome first contacted the Dunn, North Carolina, Police Department in early October 1997 to alert them that he had information about drug dealing in Sampson County, North Carolina. The Dunn police referred Jerome to authorities in Sampson County but asked Jerome to contact the Dunn police if he became aware of any narcotics activity taking place in Dunn.

Approximately a week later, Jerome contacted the Dunn police again to inform them that drug dealers were operating out of a hotel in Dunn. The police arranged for Jerome to perform a controlled purchase of two ounces of crack cocaine from the dealers, and Jerome was paid $500 for his assistance, even though he offered to work for free because, he said, his father had been killed by drug dealers. Based on Jerome's successful undercover purchase, the Dunn police decided to use Jerome to set up two sting operations involving larger amounts of cocaine. The second sting operation, performed on November 7, 1997, led to the arrest of Anty and her co-conspirators. For his assistance in the two sting operations, as well as his willingness to testify at trial, Jerome was paid $10,000. He received $6,000 on November 7, 1997 from the Dunn Police Department; $2,000 on November 17 from the Sampson County Sheriff's Department; and a final installment of $2,000 in May 1998 from the Sanford Police Department. The police testified that they determine the amount of compensation an informant will receive by evaluating the information provided and the benefits to be derived from the information. When a drug deal is involved, the officers stated they also consider the quantity of drugs and the identity of the persons arrested.

Based on these facts, the district court concluded, in an order entered November 17, 1998, that Jerome had been paid for his testimony in violation of 18 U.S.C. § 201(c)(2) and that his testimony should be suppressed. Thereafter, following the parties' briefing, the court granted Anty's motion for a mistrial by order entered January 25, 1999. It also concluded that "the Double Jeopardy Clause of the Fifth Amendment does not bar retrial" and directed the clerk to set the matter for retrial during the February 22, 1999 term of court. The government took this interlocutory appeal from the court's January 25, 1999 order granting Anty's motion for a mistrial based on its November 17, 1998 order granting Anty's motion to suppress the testimony of Jerome. See 18 U.S.C. § 3731.

II

The government contends that the district court erred in concluding that it was barred from presenting the testimony of informants who were paid money to assist the government in its criminal investigation and to testify at trial. It argues that a well-established body of law authorizes the government to pay informants to provide information and to testify in the prosecution of crimes, and that Congress, in enacting 18 U.S.C. § 201(c)(1), never intended to criminalize the practice. Secondarily, the government contends that a violation of 18 U.S.C. § 201(c)(2) "would not warrant the application of an exclusionary rule." It argues that the suppression of an informant's testimony is "an excessive and unnecessary form of relief for a violation of § 201(c)(2)."

Anty contends that the mistrial was appropriate because the government offered the testimony of a paid informant and 18 U.S.C. § 201(c)(2) "plainly states that it is unlawful to offer or give anything of value for or because of testimony in a trial." Noting that the informant in this case received cash payments for assisting the government in uncovering the criminal conduct and for testifying in court, Anty argues that the district court acted within its authority by "excluding the testimony . . . and granting a new trial as a remedy to deter future violations of the federal gratuities statute."

The issue of whether § 201(c)(2) prohibits the government from offering the testimony of a paid informant when giving testimony is part of the arrangement with the informant is one of first impression in this circuit. Resolution of this dispute involves the proper interpretation of 18 U.S.C. § 201(c)(2), which provides:

Whoever . . . directly or indirectly, gives, offers or promises 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 proceeding, 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.

The original enactment of this version of the statute in 1962 constituted part of an effort by Congress "to strengthen the criminal laws relating to bribery, graft, and conflicts of interest." S. Rep. No. 872213, at 1, reprinted in 1962 U.S.C.C.A.N. 3852, 3852; see also Pub. L. No. 87-849, 76 Stat. 1119 (entitled "An Act to strengthen the criminal laws relating to bribery, graft, and conflicts of interest, and for other purposes" and captioning § 201 "Bribery of public officials and witnesses"). Continuing a strong prohibition against the bribery of witnesses was an important part of Congress' effort to protect the integrity of the judicial process. In this respect,§ 201 supplements other statutes aimed at assuring that only truthful testimony is received from witnesses in court. See, e.g., 18 U.S.C. § 1512 (prohibiting witness tampering); 18 U.S.C. § 1622 (prohibiting subornation of perjury).

In response to the Tenth Circuit's panel decision in United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), criminal defendants have repeatedly relied on § 201(c)(2) to argue...

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