2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-13-2000

United States v. Harris

Precedential or Non-Precedential:

Docket 99-1026

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Recommended Citation

"United States v. Harris" (2000). 2000 Decisions. Paper 79.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/79
Filed April 13, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 99-1026 

UNITED STATES OF AMERICA 

v. 

VINCENT ERIC HARRIS, 

 Appellant 

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 

Argued March 9, 2000 

Before: SCIRICA, ALDISERT and COWEN, Circuit Judges 

(Filed April 13, 2000) 

 Sara Webster, Esq. (Argued) 

 Mellon, Webster & Mellon 

 87 North Broad Street 

 Doylestown, PA 1890l 

 Counsel for Appellant 

 Robert R. Calo, Esq. (Argued) 

 Office of the United States Attorney 

 615 Chestnut Street 

 Philadelphia, PA 19106 

 Counsel for Appellee 
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drug dealer, had withdrawn from his illegal activities by 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 

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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, 

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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. 

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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 government to pay 

"witness fees provided by law." See 18 U.S.C. S 201(d). 

Harris could argue that since these statutes are limited 

to expenses a witness incurs in testifying on the 

government's behalf, they appear to offer insufficient 

support for any greater compensation for gathering 

evidence and testifying. But other statutes address more 

directly the circumstance raised in our case--payments to 

others for gathering information. As Anty explains,

Congress has authorized payments for "information" and 

"services" to apprehend those who violate a number of 

criminal laws. See, e.g., 21 U.S.C. S 886(a) (payments to 

individuals for drug enforcement); 26 U.S.C. S 7623

(payments to detect and prosecute tax offenders); 19 U.S.C. 

S 1619 (payments for information in customs enforcement); 

18 U.S.C. S 3059B (rewards for assisting the Department of 

Justice); 18 U.S.C. S 3059A(a)(1) (payments for information 

in prosecution of offenses against financial institutions); 18 

U.S.C. S 3059(b) (rewards for information in apprehending 

certain fugitives); 18 U.S.C. S 1751(g) (payments for 

"information and services" about assassination, assault, or 

kidnapping of the President); 18 U.S.C. S 3056(c)(1)(D) 

(payments for assisting the Secret Service). As Anty 

reasoned, we think that Congress contemplated that the 

individuals paid under these statutes could assist both by 

gathering information and testifying about it. "In 

authorizing the payment of rewards for information,

assistance, and services in the enforcement of criminal 

statutes, Congress surely must have contemplated 

payments to informants for assisting both in investigations 

and by testifying." 203 F.3d at 309. Adopting the rule urged 

by Harris also would seem to have the surprising 

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implication that police officers may not testify at trials, as 

the government pays the officers a salary to collect 

information and testify at trial about that information when 

necessary. 

This case does not require us to decide, however, whether 

the antigratuity statute allows the government to pay a 

witness solely or essentially for favorable testimony, as 

distinct from paying a witness for collecting evidence and 

testifying about what was found. In this regard we follow 

the Seventh Circuit, which has expressly reserved whether 

the antigratuity statute "would permit prosecutors to pay 

cash for favorable testimony, a practice that lacks the 

statutory and historical support of immunity and sentence 

reduction." United States v. Condon, 170 F.3d 687, 689 (7th 

Cir.), cert. denied, 119 S.Ct. 1784 (1999). Existing rules of 

evidence may also speak to this circumstance. 

The government insists that we have effectively decided 

that it can make payments solely for favorable testimony 

because in Hunte we defined the term "whoever" in the 

antigratuity statute as not including the government. We 

disagree with the government that Hunte resolves the issue. 

In Hunte we merely held that "whoever" does not 

encompass the government when it is acting within some 

well-established authority--in that case the government's 

power to use leniency or plea agreements in exchange for 

truthful testimony. Our reasoning in this case parallels that 

logic. 

We find no merit in the other arguments Harris raises. 

For the foregoing reasons, the December 21, 1998 

judgment of the District Court will be affirmed. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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