1The Honorable Ronald E. Longstaff, Chief Judge, United States District Court

for the Southern District of Iowa, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-1078

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Michael Gandolfo Albanese, *

*

Appellant. *

___________

Submitted: June 18, 1999

Filed: October 5, 1999

___________

Before BOWMAN and HEANEY, Circuit Judges, and LONGSTAFF,1 District Judge.

___________

BOWMAN, Circuit Judge.

Michael Gandolfo Albanese was charged with conspiring to distribute five or

more kilograms of cocaine in violation of 21 U.S.C. § 841 (1994). Two prior

proceedings having ended in mistrials, Albanese was convicted in a third proceeding

and sentenced to 360 months of incarceration. He appeals, claiming that government

misconduct caused the second proceeding to end in a mistrial and that the Double

Jeopardy Clause therefore barred his subsequent reprosecution. Albanese also
2The Honorable Howard F. Sachs, United States District Judge for the Western

District of Missouri, presided over the revocation hearing and all other federal

proceedings relevant to this appeal.

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challenges the District Court's admission of testimony from a witness compensated by

the Government. We affirm.

I.

Albanese was convicted for conspiring with two other men, Nicholas LanFranca

and Joseph Riley. In January 1997, Riley arranged to purchase five kilograms of

cocaine from Joseph Bartels. Riley intended to rob and kill Bartels instead of paying

for the cocaine.

On January 30, 1997, Riley met Bartels at a motel in Platte County, Missouri.

While Albanese and LanFranca waited outside the motel in Riley's car, Riley entered

the motel room and shot Bartels, seriously wounding him. Bartels was a paid

cooperating witness for the Federal Bureau of Investigation (FBI), and FBI agents were

monitoring the purported drug transaction from an adjoining room. Agents rushed into

the motel room and shot and killed Riley. Other FBI agents then arrested Albanese and

LanFranca outside the motel.

Albanese and LanFranca were charged in federal court for their role in the

conspiracy, and Albanese was charged in state court for Riley's death. Because

LanFranca was on supervised release at the time of his arrest, the Government also

moved to have his release revoked. Bartels testified at LanFranca's revocation hearing

in March 1997 regarding LanFranca's participation in the conspiracy, and the District

Court2 revoked LanFranca's release. LanFranca then pleaded guilty to the federal drugconspiracy charge and agreed to testify against Albanese.
3

Jeopardy did not attach in the first proceeding, because the jury had not yet been

sworn. See United States v. Givens, 88 F.3d 608, 611 (8th Cir. 1996).

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Albanese's federal criminal trial was scheduled on three separate occasions. The

District Court discontinued the first proceeding in December 1997 after voir dire

because pretrial publicity regarding Albanese's state murder trial had tainted the venire.3

Albanese then went to trial a second time in February 1998. This trial reached jury

deliberations, but the District Court declared a mistrial after the jury could not reach

a unanimous verdict. Finally, Albanese went to trial a third time in March 1998. He

was convicted and subsequently sentenced. Seeking reversal of his conviction,

Albanese appeals.

II.

Normally the Double Jeopardy Clause allows a criminal defendant to be retried

after a prior proceeding ends in a hung jury. See Richardson v. United States, 468 U.S.

317, 323-24 (1984); United States v. Perez, 22 U.S. (9 Wheat.) 579, 579-80 (1824).

In Oregon v. Kennedy, 456 U.S. 667 (1982), however, the Supreme Court recognized

an exception to this rule where the Government engages in conduct intended to provoke

a criminal defendant to move for a mistrial, and the defendant successfully moves for

a mistrial based on this misconduct. See id. at 679. Albanese claims that government

misconduct regarding inconsistent testimony by Bartels, a paid government witness,

caused the February 1998 trial to end in a mistrial, and therefore Kennedy bars his

retrial and conviction.

Bartels gave inconsistent accounts of LanFranca's role in the conspiracy at

LanFranca's revocation hearing in March 1997 and at Albanese's conspiracy trial in

February 1998. At LanFranca's revocation hearing, Bartels testified that LanFranca

participated actively in the conspiracy and knew of Riley's desire to rob and kill a drug

dealer. Specifically, Bartels testified that, during a March 1996 conversation regarding
4Albanese's appellate counsel did not represent Albanese during the February

1998 or March 1998 proceedings before the District Court.

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a proposed drug deal, LanFranca stood two feet away from Riley and Bartels and,

although not speaking, appeared to back Riley up when Riley suggested robbing and

killing a drug dealer. See Transcript of Proceedings (Partial) dated March 3, 1997, at

8, 14-15. At Albanese's February 1998 trial, however, Bartels minimized LanFranca's

participation in the drug conspiracy, testifying that LanFranca was "present, but he was

not close to [Bartels and Riley] and he was not involved in that specific conversation"

when Riley suggested to Bartels that they should rob and kill a drug dealer.

See Transcript of [the February 1998] Proceedings, Cross-Examination of Joseph

Bartels at 25. According to Albanese, Bartels' inconsistency helped the Government

because Bartels' March 1997 testimony would have contradicted, but the February

1998 testimony supported, LanFranca's February 1998 testimony that Albanese knew

Riley wanted to rob and kill a drug dealer, while LanFranca himself was unaware of

Riley's plan. Cf. Partial Transcript of [the February 1998] Proceedings, CrossExamination of Nicholas J. LanFranca at 16-20.

Albanese alleges the Government engaged in misconduct when it failed to

disclose the inconsistencies in Bartels' testimony. The same Assistant United States

Attorney (AUSA) examined Bartels at LanFranca's March 1997 revocation hearing and

during Albanese's February 1998 trial. When Bartels offered testimony in the February

1998 trial that was inconsistent with his previous testimony, however, the AUSA did

not tell the District Court or defense counsel4 about Bartels' previous testimony.

Rather, one of the District Court's law clerks who observed both proceedings told the

judge that Bartels' February 1998 testimony contradicted his earlier testimony. The

District Court then alerted defense counsel, and--after the AUSA provided defense

counsel with a transcript of Bartels' testimony at the revocation hearing--permitted

defense counsel to reopen his examination of Bartels and reveal the prior inconsistent

testimony to the jury.
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Bartels' inconsistent testimony having been revealed, the case went to the jury,

which failed to reach a unanimous verdict. Albanese's argument, essentially, is that the

hung jury and the resulting mistrial were caused by the inconsistencies in Bartels'

testimony that were shown to the jury. Albanese further argues that, because

government misconduct produced the inconsistent testimony that caused the February

1998 proceeding to end in a mistrial, Kennedy bars Albanese's subsequent

reprosecution.

There are at least three major problems with Albanese's argument. First,

Albanese relies only on conjecture when he claims that the events surrounding the

revelation of Bartels' prior inconsistent testimony caused the hung jury. Albanese

claims we should adopt his hypothesis because, he argues, the only explanation as to

why the February 1998 jury would not convict Albanese, while the jury in the state

murder trial and the March 1998 jury did convict him, was that only the February 1998

jury was privy to the Government's failure to disclose Bartels' prior inconsistent

testimony. Many other factors, however, might explain why the February 1998 jury

reached a different conclusion. We do not and as a practical matter cannot know why

the February 1998 jury failed to reach a unanimous verdict. See United States v. Felix,

996 F.2d 203, 209 (8th Cir. 1993) (stating that there is no way to know why a jury

reaches a particular verdict). Therefore, we hesitate to speculate in the way Albanese

urges.

Second, the circumstances in which Kennedy bars retrial are unlike the present

case. In Kennedy, the Court was concerned that a prosecutor, believing a case was not

going well and fearing the jury might acquit the defendant, would engage in misconduct

in the hope of provoking the defendant to move for a mistrial. The Court was reluctant

to allow the prosecution to put the defendant in the position of having to choose either

to refrain from moving for a mistrial, instead hoping any conviction gained by the

misconduct would be overturned, or to move for a mistrial, thus giving the prosecutor

another opportunity to try the case. See Kennedy, 456 U.S. at 673-76. In this case,
5The fact that Bartels was paid for cooperating in this and other federal criminal

investigations, a point discussed in greater detail infra in Part III, adds little to this

analysis. Albanese does not suggest that the Government compensated Bartels so that

he would testify inconsistently, or that Bartels' compensation depended upon the

content of his testimony or the outcome of the trial. Cf. United States v. Risken, 788

F.2d 1361, 1373-74 (8th Cir.) (affirming a conviction although a prosecution witness

was compensated and the amount of compensation varied according to the outcome of

the trial), cert. denied, 479 U.S. 923 (1986).

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however, Albanese never faced this Hobson's choice: Albanese faced reprosecution

only because the jury, for whatever reason, failed to reach a unanimous verdict in the

February 1998 trial.

Third, and most importantly, the Government's conduct in this case simply does

not rise (or, more accurately, sink) to the level at which Kennedy would bar retrial.

Several grounds support this conclusion. First, Kennedy forbids a retrial only if the

government intentionally engaged in the conduct that caused the defendant to move for

mistrial. See Jacob v. Clarke, 52 F.3d 178, 181 (8th Cir. 1995) (stating that, under

Kennedy, a defendant "must prove intentional prosecutorial misconduct"). Albanese

does not accuse the Government of intentionally causing Bartels to change his

testimony, nor does Albanese offer proof that the Government expected that Bartels

would change his testimony. The District Court, in fact, stated it did not believe that

the Government engaged in intentional misconduct. See Excerpts of Sentencing

Transcript, Appellant's Appendix at 84. This finding is not clearly erroneous.5

In addition, Albanese cannot point to any right the Government violated by

failing to notify him that Bartels was testifying inconsistently. Bartels gave his prior

testimony at a public proceeding, so the Government's failure to turn over a transcript

of Bartels' prior testimony violated neither Brady v. Maryland, 373 U.S. 83, 87 (1963),

nor the Jencks Act, 18 U.S.C. § 3500 (1994). See United States v. Jones, 160 F.3d

473, 479 (8th Cir. 1998) (finding no Brady violation where the government failed to
6When Albanese's attorney asked an FBI agent to name the witnesses who

testified at LanFranca's revocation hearing, the agent apparently failed to mention that

Bartels had testified. This omission alone, however, does not prove that the

Government acted improperly. Albanese has made no attempt to show that the FBI

agent's omission was anything more than inadvertent.

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inform defense counsel of a plea agreement "because transcripts of [the] plea agreement

and sentencing hearing were readily available"); id. at 479 n.5 (stating that matters of

public record are "not within the scope of the Jencks Act"). Moreover, defense counsel

had ample opportunity to learn about Bartels' prior testimony. Defense counsel knew

about LanFranca's revocation hearing, having requested the testimony of other

witnesses at the proceeding,6 and even deposed Bartels before Bartels testified at

Albanese's February 1998 trial.

Moreover, though Albanese correctly points out that a prosecutor may not

knowingly, recklessly, or negligently introduce perjured testimony, see United States

v. Duke, 50 F.3d 571, 577-78 (8th Cir. 1995), Albanese has not shown that Bartels

committed perjury. Bartels' testimony was inconsistent, but these inconsistencies might

have been due to the gunshot wound Riley inflicted and its treatment, as Bartels

claimed, see Transcript of [the February 1998] Proceedings, Cross-Examination of

Joseph Bartels at 50, or merely the passage of time. In either case, Bartels would lack

the requisite mens rea for perjury. See United States v. Dunnigan, 507 U.S. 87, 94

(1993) (stating that a witness does not commit perjury if inconsistencies in testimony

are not intentional but rather the "result of confusion, mistake, or faulty memory").

Albanese has shown nothing more than that a government witness testified

inconsistently. This does not violate Duke.

Finally, whatever problems Bartels' inconsistent testimony caused were

effectively cured at trial. Albanese had adequate opportunity to expose the

inconsistencies to the jury in both the second and third proceedings. The District Court

permitted defense counsel to reopen his examination of Bartels during the February
7Section 201(c)(2) states that anyone who,

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, any committee of either House or both

Houses of Congress, or any agency, commission, or officer authorized by

the laws of the United States to hear evidence or take testimony, or for or

because of such person's absence therefrom

shall be imprisoned or fined for such conduct. See 18 U.S.C. § 201(c)(2).

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1998 trial, and the Government questioned Bartels regarding his inconsistent testimony

during its direct examination of him at the March 1998 trial. Albanese does not suggest

that the belated revelation that Bartels was testifying inconsistently impeded his defense

during the February 1998 trial. In fact, we agree with the District Court that the manner

in which the inconsistency was revealed--allowing Albanese to reopen crossexamination of Bartels on this point--probably highlighted Bartels' inconsistent

testimony and if anything aided Albanese's defense. See Excerpts of Sentencing

Transcript, Appellant's Appendix at 84.

For these reasons, we hold that Albanese's reprosecution subsequent to the

February 1998 mistrial did not violate his rights under the Double Jeopardy Clause.

III.

We also reject Albanese's argument that the District Court erred when it failed

to exclude Bartels' testimony because Bartels received compensation. The Government

admits that Bartels received leniency on criminal charges he faced and payments in

excess of $60,000 for his cooperation in investigating and prosecuting this conspiracy

and other criminal activities. Albanese claims that 18 U.S.C. § 201(c)(2) (1994)7

forbids such compensation. Albanese makes the argument, briefly accepted by the
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Tenth Circuit in Singleton v. United States, 144 F.3d 1343 (10th Cir. 1998), opinion

vacated and rehearing granted, 144 F.3d 1361 (10th Cir. July 10, 1999) (en banc), on

rehearing, 165 F.3d 1297 (10th Cir.) (en banc), cert. denied, 119 S. Ct. 2371 (1999),

that the Government violated § 201(c)(2) and that this violation requires the exclusion

of Bartels' testimony.

This Court has consistently rejected the argument that the government violates

§ 201(c)(2) when it grants a prosecution witness leniency for testifying. See United

States v. Johnson, 169 F.3d 1092, 1097-98 (8th Cir. 1999); United States v. Boyd, 168

F.3d 1077, 1078 (8th Cir. 1999). We also have a long history of allowing the

government to compensate witnesses for their participation in criminal investigations.

See, e.g., United States v. Einfeldt, 138 F.3d 373, 377 (8th Cir. 1998) (affirming a

conviction although defense counsel did not learn the government compensated a

prosecution witness until trial); United States v. Gordon, 974 F.2d 97, 99-100 (8th Cir.

1992) (finding the evidence was sufficient to uphold the appellant's conviction, even

though the primary prosecution witness had received $77,000 through the witness

protection program plus $30,000 as a percentage of the illegal funds that he helped the

government recover); United States v. Risken, 788 F.2d 1361, 1373 (8th Cir.)

(upholding a conviction obtained through testimony of a paid government witness

although the fact that the witness would receive greater compensation if the defendant

were convicted was not disclosed to the jury), cert. denied, 479 U.S. 923 (1986);

United States v. Quinn, 543 F.2d 640, 651 (8th Cir. 1976) (stating that ordinarily a

defendant is entitled to cross-examine a paid informant regarding his or her relationship

and agreement with the government, but not suggesting such payments are

inappropriate). 

Furthermore, just as certain federal statutes indicate prosecutors may--in

apparent contradiction to § 201(c)(2)--grant witnesses leniency for testifying, see, e.g.

18 U.S.C. § 3553(e) (1994) (allowing a court, on the government's motion, to impose

a sentence below a statutory minimum "to reflect a defendant's substantial assistance
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in the investigation or prosecution of another person who has committed an offense");

28 U.S.C. § 994(n) (1994) (requiring the Sentencing Guideline Commission "to take

into account a defendant's substantial assistance in the investigation or prosecution of

another person who has committed an offense"); see also Johnson, 169 F.3d at

1098; United States v. Ramsey, 165 F.3d 980, 990 (D.C. Cir. 1999), other statutes

authorize the federal government to pay witnesses, see, e.g., 18 U.S.C. § 3521(b)

(1994) (allowing the government to provide services, including payments to meet living

expenses, to individuals who testify for the federal or state governments in criminal

trials).

The fact that the Government granted Bartels leniency and paid him for his

assistance was known to the jury and was fully explored at trial before the jury

convicted Albanese. We conclude that § 201(c)(2) provides no basis for reversing this

conviction.

IV.

For the reasons stated above, Albanese's conviction is affirmed.

HEANEY, Circuit Judge, dissenting.

Whether the government violates 18 U.S.C. § 201(c)(2) by paying a witness in

exchange for testimony is an issue of first impression in this court. I believe the

government's payment for a witness's testimony violates § 201(c)(2), and I believe an

evidentiary hearing is required for the government to show its payments to Bartels did

not constitute such an illegal payment. Because the majority fails to address this issue

adequately, I respectfully dissent.

I.
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As the majority recounts, Bartels' testimony at Albanese's February 1998 trial

conflicted with his testimony at LanFranca's March 1997 revocation hearing.

Subsequently, at the March 1998 trial that resulted in Albanese's conviction, both the

prosecutor and the defense broached the subject of Bartels' compensation for his

assistance to the government. On direct, the government elicited the following

testimony:

Q Have you been paid in the course of your cooperation?

A Yes.

Q How much have you been paid?

A I roughly believe the total amount would be somewhere in the

sixties, mid sixties.

Q Mid 60,000?

A 60,000.

Q If I tell you $66,311.36, does that sound about right?

A Yes, sir.

(Tr. Vol. I at 211-12.)

On cross-examination, Bartels clearly indicated that he was being paid for his

trial testimony:

Q Now you are getting paid for your time here today?

A Yes, sir.

Q How much do you charge?

A I don't charge.

Q How much do you get paid for being here to testify?

A I don't know. I don't make that decision.

Q Do you get paid whether you tell the truth or not?

A I get paid for my time, my services.

(Tr. Vol. II at 275.) 

II.
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In Singleton v. United States, 144 F.3d 1343 (10th Cir. 1998) (Singleton I),

rev'd, 165 F.3d 1297 (10th Cir.) (en banc), cert. denied, 119 S. Ct. 2371 (1999), a panel

of the Tenth Circuit reversed a criminal conviction on the ground that the prosecutor

violated § 201(c)(2) by offering a co-defendant leniency in exchange for truthful

testimony. In its en banc opinion reversing Singleton I, the Tenth Circuit concluded

that the statute's reference to "whoever" did not apply to government prosecutors. The

court reasoned that an Assistant United States Attorney acting within the scope of the

authority of that office is "the alter ego of the United States exercising its sovereign

power of prosecution." See United States v. Singleton, 165 F.3d 1297, 1299-1302

(10th Cir. 1999) (en banc) (Singleton II). We confronted the same issue in United

States v. Johnson, 169 F.3d 1092 (8th Cir. 1999), petition for cert. filed (U.S. June 15,

1999) (No. 84-2449). In that case, Johnson argued the district court should have

suppressed the testimony of a number of cooperating witnesses because the

government's cooperation agreements violated § 201(c)(2). We rejected Johnson's

argument, noting the Tenth Circuit's ultimate rejection of the argument. See 169 F.3d

at 1097-98. Unlike the Tenth Circuit, however, we did not go so far as to hold that

federal prosecutors were beyond the reach of the federal anti-bribery statute: "We

agree that the statute does not sweep so broadly as to prevent prosecutors from offering

leniency to an individual in exchange for truthful testimony." 169 F.3d at 1098.

In my view, this case is controlled neither by our decision in Johnson nor by the

string of cases cited by the majority. This court simply has not yet decided whether the

practice of paying witnesses for testimony violates § 201(c)(2). In none of the cases

cited by the majority did we decide whether § 201(c)(2) prevents the government from

purchasing testimony. Moreover, only in Risken is it clear that the witness in question

was compensated specifically for testimony rather than for mere information. Compare

United States v. Risken, 788 F.2d 1361, 1372-73 (8th Cir. 1986) (witness received fee

contingent upon defendant's conviction) with United States v. Einfeldt, 138 F.3d 373,

377 (8th Cir. 1998) (trial witness was paid informant), United States v. Gordon, 974

F.2d 97, 98-99 (8th Cir. 1992) (witness granted immunity and placed in witness
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protection program in exchange for "cooperation"; witness paid 25% of any illegallyobtained money he "helped to recover"), and United States v. Quinn, 543 F.2d 640,

646, 651 (8th Cir. 1976) (paid informant was never called as witness). I therefore

believe this court must confront squarely § 201(c)(2)'s impact on the government's

payment for testimony.

III.

At the outset, I believe § 201(c)(2) cannot be read to exclude government

prosecutors. In Nardone v. United States, the Supreme Court considered whether

government agents were covered by a statute that allowed "no person" to engage in

wiretapping. 302 U.S. 379 (1937). Looking to long-established canons of statutory

construction, the Court concluded that the language of the statute must be taken at face

value, thereby including government agents within its prohibition. 302 U.S. at 383-84.

The Court began by acknowledging the rule that "general words of a statute do

not include the government or affect its rights unless the construction be clear and

indisputable upon the text." Id. at 383. However, the Court determined that the

application of the rule excluding the government is limited to two classes of cases. The

first is "where an act, if not so limited, would deprive the sovereign of a recognized or

established prerogative title or interest." Id. at 383. The second is where reading a

statute to include governmental officers "would work obvious absurdity." Id. at 384.

The Court concluded the anti-wire-tapping statute at issue fit within neither class.

Finally, the Court noted the canon dictating that "the sovereign is embraced by general

words of a statute intended to prevent injury and wrong." Id.

As the Singleton II opinion makes clear, the government's practice of offering

leniency in exchange for truthful testimony is a prosecution tactic deeply rooted in the

common law. See Singleton II, 165 F.3d at 1301 ("This ingrained practice of granting

lenience in exchange for testimony has created a vested sovereign prerogative in the
8While the rejection of Singleton I may aptly be characterized as a "stampede,"

United States v. Lowery, 166 F.3d 1119, 1123 (11th Cir. 1999), other courts have

recognized that the issue we face in this case is distinct from that in Singleton, see

United States v. Hunte, No. 97-1987, 1999 WL 649627, at *4 n.4 (3d Cir. Aug. 26,

1999) (reserving question of § 201(c)(2)'s application where witness has received

money from government in exchange for testimony); United States v. Condon, 170 F.3d

687, 689 (7th Cir. 1999) (rejecting argument that leniency in exchange for testimony

violates § 201(c)(3), but declining to hold that statute does not apply to federal

prosecutors; "[t]hat approach, if taken seriously, would permit prosecutors to pay cash

for favorable testimony, a practice that lacks the statutory and historical support of

immunity and sentence reduction").

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government."); see also United States v. Ware, 161 F.3d 414, 419 (6th Cir. 1998)

("The prosecutorial prerogative to recommend leniency in exchange for testimony dates

back to the common law in England and has been recognized and approved by

Congress, the courts, and the Sentencing Commission of the United States").

Construing § 201(c)(2) to forbid such bargaining would therefore run afoul of Nardone

by infringing upon a "recognized or established prerogative" of the government. 

But construction of the statute to permit the government to offer pecuniary

rewards for testimony--as Albanese claims the government did in this case--is another

matter entirely.8 First, although the practice of paying for information is certainly

familiar, I find no indication that payments specifically for testimony have a similar

pedigree. To the contrary, the corrupting influence of money on testimony and the

judicial process as a whole has long been a concern at common law, as amply

illustrated by the Singleton II dissenters. See Singleton II, 165 F.3d at 1313-14 (Kelly,

J., dissenting) (noting that at common law in most jurisdictions it is improper to pay

occurrence witness any fee for testimony, and that agreements to pay fact witnesses are

generally void as contrary to public policy and for lack of consideration). And while

it is true that we have upheld contingent-fee agreements for witness testimony such as

that in Risken against due process challenges, such agreements can hardly be deemed

established to the point of being a sovereign prerogative. See Samuel A. Perroni &
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Mona J. McNutt, Criminal Contingency Fee Agreements: How Fair Are They?, 16 U.

Ark. Little Rock L.J. 211, 214-20 (1994) (recounting how "barrage" of cases involving

witness contingent-fee agreements emerged in 1980s).

The majority cites 18 U.S.C. § 3521 as a lone example of "other statutes" that

authorize payment of witnesses in apparent contradiction to § 201(c)(2). I see no such

contradiction. Under § 3521(a)(1) the government may provide for the relocation and

protection of a government witness or potential witness threatened by violence or other

interference. The government may provide for the relocation and protection of such

witnesses, including payment of living expenses, where necessary to protect the witness

and assure that person's health safety and welfare. See 18 U.S.C. § 3521(b)(1). But

the plain purpose of this statute is protection, not compensation; payments and other

gratuities are provided "in connection with the protection . . . of a witness," and must

be determined by the Attorney General to be "necessary to protect the person involved

from bodily injury and otherwise to assure the health, safety, and welfare of that

person." Id.

I think it also clear that no absurdity results from holding both the government

as well as private entities bound by a statute intended to protect the reliability of

testimony. To the contrary, I find no reason to believe that testimony bought and paid

for by the government is somehow immune from being corrupted, either by design or

otherwise. Finally, Nardone counsels that a statute "intended to prevent injury and

wrong," as § 201(c)(2) plainly is, applies to the sovereign as well. See Nardone, 302

U.S. at 384.

IV.

I believe that here, as with the government's violation of the anti-wire-tapping

statute in Nardone, the appropriate remedy is the exclusion of evidence obtained by the
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government in violation of the statute. See Nardone v. United States, 308 U.S. 338,

339-41 (1939).

"Any claim for the exclusion of evidence logically relevant in criminal

prosecutions is heavily handicapped. It must be justified by an over-riding public

policy expressed in the Constitution or the law of the land." Id. at 340. We must

reconcile the need for "stern enforcement of the criminal law" with the concern for

preservation of the integrity of the judicial process that Congress has manifested in

§ 201(c)(2). See id. The circumstances of the case before us persuade me that this

balance should tip toward protection of the trustworthiness of the judgments of our

courts. As in the Fourth Amendment context, exclusion of paid testimony would

provide a vital incentive for the government to abide by the law. Moreover, exclusion

of paid testimony directly advances the concern of the underlying law: the reliability

of evidence.

The case before us illustrates vividly the dangers posed by the government's

purchase of testimony. With respect to LanFranca, Bartels appears to have attempted

to give the testimony he thought the government wanted to hear, implicating LanFranca

in the conspiracy at LanFranca's revocation hearing, and then changing his testimony

so as to shore up LanFranca's credibility at Albanese's February 1998 trial, where

LanFranca testified for the government. It is only by the aid of the district judge's

perceptive law clerk that we are aware of this particular prevarication; one can only

wonder in what other ways Bartels endeavored to keep his customer satisfied.

This case should be remanded to the district court for an evidentiary hearing.

Because the relevant information on this issue is in the possession of the government,

once a defendant has made a prima facie showing that the government is paying a

witness or providing other tangible remuneration for or because of testimony, the

burden must shift to the government to prove that it has not violated § 201(c)(3). On

remand, the government should be allowed to present additional evidence on this issue,
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although the present state of the record strongly suggests to me that the government will

be unable to carry this burden.

V.

For the foregoing reasons, I respectfully dissent.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.