U.S. v. Cervantes-Pacheco

• Decision Date: 21 August 1987
• Docket Number: J,CERVANTES-PACHEC,No. 84-2687,84-2687
• Citation: 826 F.2d 310
• Parties: , 23 Fed. R. Evid. Serv. 1232 UNITED STATES of America, Plaintiff-Appellee, v. Adalbertoerry Wayne Nelson and William E. Nelson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 310

826 F.2d 310

56 USLW 2175, 23 Fed. R. Evid. Serv. 1232

UNITED STATES of America, Plaintiff-Appellee, v. Adalberto CERVANTES-PACHECO, Jerry Wayne Nelson and William

E. Nelson, Defendants-Appellants.

No. 84-2687.

United States Court of Appeals,

Fifth Circuit.

Aug. 21, 1987.

Melvyn Kessler, Miami, Fla., for Pacheco and Jerry Wayne Nelson.

Oscar J. Pena, Laredo, Tex., for William E. Nelson.

Robert J. Erickson, Dept. of Justice, Washington, D.C., Susan L. Yarbrough, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., Ann T. Wallace, U.S. Dept. of Justice, Crim. Div., Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court For the Southern District of Texas.

Before CLARK, Chief Judge, GOLDBERG, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL and JONES, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Appellants, Adalberto Cervantes-Pacheco, Jerry Wayne Nelson and William E. Nelson, along with five other co-defendants, were charged in a two-count indictment with conspiracy to possess more than 1,000 pounds of marijuana with intent to distribute, 21 U.S.C. Secs. 841(a), 846, and conspiracy to import marijuana from Colombia into the United States. 21 U.S.C. Secs. 963, 952(a), 960(a)(1). After a jury trial, each appellant was convicted of both charges. We affirm.

I.

The evidence at trial revealed an active criminal enterprise engaged in importing marijuana from Colombia into the United States that extended from December 1983 until June 1984. Appellant Adalberto Cervantes-Pacheco and Humberto Santos funded the drug-smuggling enterprise and provided the Colombian source for the marijuana. Ronald Sharp worked for Santos and introduced Santos to appellant William Nelson. Nelson's role in the conspiracy was to pilot his DC-7 airplane and transport the drugs into the United States. Appellant Jerry Wayne Nelson helped his brother William Nelson with airplane mechanics and accompanied his brother on the flights to Jamaica and Colombia.

Frank Kelly, who was an experienced pilot, worked as an undercover investigator for the government and infiltrated the drug-smuggling conspiracy by offering to assist in transporting the marijuana. In exchange for his flying services, Kelly received a $20,000 advance from Nelson. After receiving this advance, which was paid on behalf of the drug-smuggling enterprise, Kelly promptly turned over the entire $20,000 to federal investigators.

Kelly previously had worked as a government informer in more than thirty-five cases. Kelly's supervisor, DEA Special Agent Jimmy Bradley, told Kelly to "infiltrate, gather information for intelligence, and report" on William Nelson. Kelly understood that he would be required to testify if Kelly's information led to the indictment and trial of Nelson or other participants in the enterprise.

Kelly's compensation from the government included a per diem, expenses, and a payment at the conclusion of the case based on the government's evaluation of his overall performance. Kelly testified that he did not know what criteria the government used to fix his fee in a particular case, but that he understood the amount was set by federal officials in Washington. Kelly testified that he could not predict from fees he had earned in previous cases the amount of his fee in this case; the amount of his fee did not depend, however, upon the ultimate outcome of the case or on the arrest or conviction of any defendant.

DEA agent Bradley testified after Kelly completed his testimony. Bradley testified that he was responsible for recommending to his superiors in Washington the amount of Kelly's compensation in this case. Based on a subjective evaluation that Kelly's overall performance was "great," Bradley testified that he was going to recommend that Kelly be paid a fee of $20,000, the same amount Kelly had previously received from the drug-smuggling enterprise and turned over to federal investigators.

Only two issues were raised on appeal: (1) whether the district court erred by denying a motion for new trial because the government proved at most the existence of multiple conspiracies, not the single conspiracy charged in the indictment; and (2) whether the district court erred in allowing Kelly to testify in view of the government's fee arrangement with him. We agree with the panel's rejection of appellants' argument on the first issue. United States v. Cervantes-Pacheco, 800 F.2d 452, 454 (5th Cir.1986). We granted rehearing en banc to reconsider the panel's disposition of the second issue. The panel concluded that the government's payment of a contingent fee to its informant, Kelly, disqualified Kelly as a witness and required reversal of the defendants' conviction under Williamson v. United States, 311 F.2d 441 (5th Cir.1962). For the reasons that follow, we overrule Williamson and affirm the convictions in the instant case.

II.

A.

In Williamson, the government utilized an informer named Robert Moye to infiltrate the bootlegging operation of Jack Williamson and Lee Lowrey. Williamson v. United States, 311 F.2d 441 (5th Cir.1962). The government agents told Moye that they would pay him $10 per day in expenses, as well as $200 if he could "catch" Williamson, and another $100 for Lowrey. The court explained that:

It may possibly be that the Government investigators had such certain knowledge that Williamson and Lowrey were engaged in illicit liquor dealings that they were justified in contracting with Moye on a contingent fee basis, $200 for Williamson and $100 for Lowrey, to produce the legally admissible evidence against each of them. It may also be that the investigators carefully instructed Moye on the rules against entrapment and had it clearly understood that Moye would not induce them to commit a crime, but would simply offer them an opportunity for a sale. None of these facts or circumstances were developed in the evidence, though Moye's deposition had been taken months before trial.

Without some such justification or explanation, we cannot sanction a contingent fee agreement to produce evidence against particular named defendants as to crimes not yet committed. Such an arrangement might tend to a "frame up" or to cause an informer to induce or persuade innocent persons to commit crimes which they had no previous intent or purpose to commit. The opportunities for abuse are too obvious to require elaboration.

Id. at 444 (emphasis added). The court reversed Williamson's conviction and held that "Moye's testimony, standing alone and unexplained, discloses a form of employment of an informer which this Court cannot approve or sanction." Id.

B.

Although Williamson established a per se rule that an informant paid a contingent fee is not a competent witness, we have not reversed a conviction based on the rule since Williamson. Instead we have riddled the rule with exceptions, many of which apply to the instant case. For example, we have held that Williamson and its progeny do not apply unless the payment of the fee is made contingent on conviction of a pretargeted individual. United States v. Garcia, 528 F.2d 580, 587 (5th Cir.1976). In Garcia we refused to extend Williamson to the situation "where an informant is paid a subsistence allowance and given a reward, as long as there is no evidence that he had been promised a specific sum to convict a particular person." Id. at 586 (citations omitted).

We have found a second exception to Williamson when the government knows that the targeted individual was engaged in illicit activity prior to the institution of the contingent fee arrangement. Harris v. United States, 400 F.2d 264, 266 (5th Cir.1968); Sears v. United States, 343 F.2d 139, 144 (5th Cir.1965); Hill v. United States, 328 F.2d 988, 989 (5th Cir.1964). As Williamson itself stated, "it may possibly be that the Government investigators had such certain knowledge that Williamson and Lowrey were engaged in illicit liquor dealings that they were justified in contracting with Moye on a contingent fee basis." Williamson, 311 F.2d at 444.

We have also declined to reverse a conviction when the informant's testimony is fully corroborated at trial. In Henley v. United States, 406 F.2d 705, 706 (5th Cir.1969), we explained that "the combined testimony of agent Navarro and Michael Henley himself fully corroborated [the informant's] testimony. Thus, the jury was not required to base its verdict solely on the testimony of a man who admittedly is not a sterling character."

In addition, the cases are conflicting on whether Williamson only prohibits the government from agreeing to pay a fee contingent on conviction or whether its prohibition also applies to the government's agreement to pay a fee contingent on implication of a suspect or some other governmental objective short of conviction. Compare United States v. Lane, 693 F.2d 385, 387 (5th Cir.1982) (Williamson prohibits fees contingent on implication) with United States v. Gray, 626 F.2d 494, 499 (5th Cir.1980) (Williamson prohibits fees contingent on conviction).

Thus, because of the exceptions and distinctions to the Williamson rule, we have virtually limited Williamson to its facts. United States v. McClure, 577 F.2d 1021, 1022 (5th Cir.1978). In the process, however, we have vastly complicated the district court's job of determining whether a paid informant may testify and if the witness does testify what special instructions it should give to the jury.

C.

The Supreme Court and four circuits have rejected the Williamson rule of per se exclusion either expressly or in principle. In Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), the Supreme Court affirmed a bribery conviction even though it was based in part upon the testimony of an informant who was compensated by the government for his assistance. In return for his assistance, the informant's wife...