USA. v. Harris

• Citation: 210 F.3d 165
• Decision Date: 13 April 2000
• Docket Number: No. 99-1026,99-1026
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA, v. VINCENT ERIC HARRIS, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 165

210 F.3d 165 (3rd Cir. 2000)

UNITED STATES OF AMERICA, v. VINCENT ERIC HARRIS, Appellant

No. 99-1026

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued March 9, 2000

Filed April 13, 2000

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 98-cr-00080-1) District Judge: Honorable Harvey Bartle, III

Counsel for Appellant: Sara Webster, Esq. (Argued) Mellon, Webster & Mellon 87 North Broad Street Doylestown, PA 1890l

Counsel for Appellee: Robert R. Calo, Esq. (Argued) Office of the United States Attorney 615 Chestnut Street Philadelphia, PA 19106

Before: SCIRICA, ALDISERT and COWEN, Circuit Judges

OPINION OF THE COURT

COWEN, Circuit Judge.

In this appeal Vincent Harris contends that when the government paid several confidential informants to gather information and later had those informants testify at Harris's criminal trial, the government violated the so-called "antigratuity statute," 18 U.S.C. S 201(c)(2). The statute prohibits "whoever" from giving "anything of value to any person, for or because of the testimony under oath .. . by such person as a witness upon a trial. . . ." We reject Harris's argument and will affirm the District Court.

I

The significance of the paid informants' testimony was to identify whether Harris, who admitted having once been a drug dealer, had withdrawn from his illegal activities by February 18, 1993, the first date the prosecution could use under the statute of limitations. Harris maintained that he had quit by then and that during the early nineties he became religious and devoted his time to preaching to youths and his former accomplices about the harmful effects of drugs.

The informant who placed Harris's participation in the drug dealing closest to the time of the indictment was Patrick Watts. A number of months before the trial the government gave Watts three payments of $250, $350, and $1,500 to collect information about drug deals. In addition to these payments, Watts, who had himself previously engaged in drug trafficking, also received a sentence reduction of approximately eight years. A second witness, Jerome Lewis, received $20 a number of months before the trial for acting as a confidential informant, and had his sentence reduced from approximately fifteen years to five years. His testimony, however, was less helpful, as it placed Harris's most recent drug activity around 1992 to 1993. A third witness for the government, Ron Baxter, had his car seized and later returned by state authorities in the course of the state's prosecution of him, but there is no evidence in the record that the decision to return the car was influenced by federal officials. Harris also argues that the federal government never indicted Baxter, his girlfriend, or sister, all of whom apparently had some involvement with illegal drugs.

After hearing the witnesses' testimony, and having full knowledge of the money and other benefits those witnesses received, the jury convicted Harris of distributing cocaine in violation of 21 U.S.C. S 841(a)(1) and committing a related conspiracy offense in violation of 21 U.S.C. S 846.

II

We have previously held that promises of leniency do not violate the antigratuity statute. United States v. Hunte, 193 F.3d 173 (3d Cir. 1999), cert. denied, 120 S.Ct. 962 (2000). Thus, the sentence reductions that Watts and Lewis received are not prohibited by the statute. And by implication another type of leniency, the decision not to prosecute, which allegedly took place in Baxter's case, is also not prohibited by the statute. See, e.g. , United States v. Blassingame, 197 F.3d 271, 285 (7th Cir. 1999); United States v. Smith, 196 F.3d 1034, 1038 (9th Cir. 1999), cert. denied, 120 S.Ct. 1440 (2000). Cf. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653 (1972) (reviewing lengthy history of grants of immunity to witnesses). The central question raised in this appeal is whether the government violates the statute when it pays an informant before trial to collect information and does so when there is some expectation that the informant may later testify about what the informant discovered.

In United States v. Gonzales, 927 F.2d 139 (3d Cir. 1991), we held that there was no constitutional due process violation when a government informant testified at a criminal trial and was compensated for his participation in a sting operation by receiving a percentage of the assets forfeited by the defendant. Cf. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408 (1966) (no due process violation for using testimony of an informer who received some compensation). Under the agreement at issue in Gonzales, the amount of the informant's reward depended on the degree of his cooperation, but the defendants did not have to be convicted for the informant to be paid. 927 F.2d at 143. Nevertheless, we operated under the assumption that the informant "did have an interest in the result of " the case. Id. at 144. In finding no due process violation, we concluded that "[t]he method of payment is properly a matter for the jury to consider in weighing the credibility of the informant." Id. (quoting United States v. Hodge, 594 F.2d 1163, 1167 (7th Cir. 1979)).

Whether the government's use of a paid informant's testimony rises to the level of a constitutional violation, however, does not resolve whether legislation like the antigratuity statute prohibits the government from using the testimony. No such statutory issue was before the court in Gonzales. But regardless of the reach of Gonzales, under the facts of his case Harris is rowing against the tide. So far the three circuits that have directly addressed the issue have held, under a variety of circumstances, that the government's use of a paid informant's testimony does not violate the antigratuity statute. See United States v. Anty, 203 F.3d 305 (4th Cir. 2000); United States v. Barnett, 197 F.3d 138 (5th Cir. 1999); United States v. Albanese, 195 F.3d 389 (8th Cir. 1999).

We agree with these circuits that the government can pay informants to gather information and can have those informants testify at trial. In reaching this conclusion we stress, as the Fourth Circuit did, that "a defendant's right to be apprised of the government's compensation arrangement with the witness, see United States v. Bagley, 473 U.S. 667, 683-84, 105 S.Ct. 3375 (1985), and to inquire about it on cross-examination, cf. Davis v. Alaska, 415 U.S. 308, 315-17, 94 S.Ct. 1105 (1974), must be vigorously protected." United States v. Anty , 203 F.3d at 312. And of course perjury and the use of perjured testimony remain illegal. Barnett, 197 F.3d at 144.

Our reasoning follows the rationale in Hunte: a general term like "whoever," as it appears in the antigratuity statute, excludes the United States when a contrary reading "would deprive the sovereign of a recognized or established prerogative" or would "work obvious absurdity." Nardone v. United States, 302 U.S. 379, 383-84, 58 S.Ct. 275 (1937). As the Fourth Circuit detailed, a broad array of statutes permit the government to pay witnesses for fees and expenses, including those incurred as part of the witness protection program. Anty, 203 F.3d at 309 (citing 28 U.S.C. S 1821 (per diem, mileage, and subsistence expenses for witnesses); Fed.R.Crim.P. 17(b) (same); 18 U.S.C.S 3195 (extradition costs); 18 U.S.C. S 3521(b) (expenses for witness protection program); 28 U.S.C. S 1821(b) (nominal witness attendance fee); Fed.R.Crim.P. 17(d) (same)). And the antigratuity statute itself allows the...