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. e du/thir dc ir c uit_2000/79Filed 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 Judge s

(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 AppelleeOPINION OF THE COURT

COWEN, Circuit Judge.

In this appeal Vincent Harris contends that when th e government paid several confidential informants to gather information and later had those informants testify at Harris's criminal trial, the government violated th e 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 re ject Harris's argument and will affirm the District Cour t.

I

The significance of the paid informants' testimony was to identify whether Harris, who admitted having once b een a drug dealer, had withdrawn from his illegal activit ies by February 18, 1993, the first date the prosecution c ould use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 previousl y engaged in drug trafficking, also received a senten ce reduction of approximately eight years. A second wi tness, Jerome Lewis, received $20 a number of months befor e the trial for acting as a confidential informant, and h ad his sentence reduced from approximately fifteen years t o five years. His testimony, however, was less helpful, as it placed Harris's most recent drug activity around 1992 to 1 993. A third witness for the government, Ron Baxter, had h is car seized and later returned by state authorities in t he course

2of the state's prosecution of him, but there is no evidence

in the record that the decision to return the car w as influenced by federal officials. Harris also argues that the federal government never indicted Baxter, his girlf riend, 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 wit nesses 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 d o not violate the antigratuity statute. United States v. Hunte, 193 F.3d 173 (3d Cir. 1999), cert. denied, 120 S.Ct. 96 2 (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 c ase, is also not prohibited by the statute. See, e.g. , Uni ted 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. Unit ed States, 406 U.S. 441, 92 S.Ct. 1653 (1972) (reviewing lengt hy history of grants of immunity to witnesses). The ce ntral question raised in this appeal is whether the gover nment violates the statute when it pays an informant befo re trial
to collect information and does so when there is so me expectation that the informant may later testify ab out 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 particip ation in a sting operation by receiving a percentage of the assets forfeited by the defendant. Cf. Hoffa v. United Sta tes, 385 U.S. 293, 87 S.Ct. 408 (1966) (no due process viola tion for using testimony of an informer who received some compensation). Under the agreement at issue in Gonz ales,

3the amount of the informant's reward depended on th e

degree of his cooperation, but the defendants did n ot 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 o f " the case. Id. at 144. In finding no due process violati on, we concluded that "[t]he method of payment is properly a matter for the jury to consider in weighing the cre dibility 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 vi olation, however, does not resolve whether legislation like the antigratuity statute prohibits the government from using the testimony. No such statutory issue was before t he court in Gonzales. But regardless of the reach of Gonzale s, 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 t he government's use of a paid informant's testimony do es not violate the antigratuity statute. See United States v. Anty, 203 F.3d 305 (4th Cir. 2000); United States v. Barn ett, 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 ca n pay informants to gather information and can have those informants testify at trial. In reaching this concl usion we stress, as the Fourth Circuit did, that "a defendan t'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 gen eral term like "whoever," as it appears in the antigratu ity statute, excludes the United States when a contrary reading "would deprive the sovereign of a recognized or est ablished prerogative" or would "work obvious absurdity." Nar done v.

4United States, 302 U.S. 379, 383-84, 58 S.Ct. 275 ( 1937).

As the Fourth Circuit detailed, a broad array of st atutes permit the government to pay witnesses for fees and expenses, including those incurred as part of the w itness protection program. Anty, 203 F.3d at 309 (citing 2 8 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) (n ominal witness attendance fee); Fed.R.Crim.P. 17(d) (same) ). And the antigratuity statute itself allows the governme nt to pay "witness fees provided by law." See 18 U.S.C. S 201 (d).

Harris could argue that since these statutes are li mited to expenses a witness incurs in testifying on the government's behalf, they appear to offer insuffici ent support for any greater compensation for gathering evidence and testifying. But other statutes address more directly the circumstance raised in our case--payme nts 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) (payme nts to individuals for drug enforcement); 26 U.S.C. S 7623 (payments to detect and prosecute tax offenders); 1 9 U.S.C. S 1619 (payments for information in customs enforce ment); 18 U.S.C. S 3059B (rewards for assisting the Depart ment of Justice); 18 U.S.C. S 3059A(a)(1) (payments for inf ormation in prosecution of offenses against financial instit utions); 18 U.S.C. S 3059(b) (rewards for information in appreh ending certain fugitives); 18 U.S.C. S 1751(g) (payments f or "information and services" about assassination, ass ault, or kidnapping of the President); 18 U.S.C. S 3056(c)(1 )(D) (payments for assisting the Secret Service). As Ant y 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 crim inal statutes, Congress surely must have contemplated payments to informants for assisting both in invest igations and by testifying." 203 F.3d at 309. Adopting the r ule urged by Harris also would seem to have the surprising

5implication that police officers may not testify at trials, as

the government pays the officers a salary to collec t information and testify at trial about that informa tion when

necessary.

This case does not require us to decide, however, w hether the antigratuity statute allows the government to p ay a witness solely or essentially for favorable testimo ny, as distinct from paying a witness for collecting evide nce and testifying about what was found. In this regard we follow the Seventh Circuit, which has expressly reserved w hether the antigratuity statute "would permit prosecutors to pay cash for favorable testimony, a practice that lacks the statutory and historical support of immunity and se ntence reduction." United States v. Condon, 170 F.3d 687, 689 (7th Cir.), cert. denied, 119 S.Ct. 1784 (1999). Existin g rules of evidence may also speak to this circumstance.

The government insists that we have effectively dec ided that it can make payments solely for favorable test imony
because in Hunte we defined the term "whoever" in t he antigratuity statute as not including the governmen t. We disagree with the government that Hunte resolves th e issue. In Hunte we merely held that "whoever" does not encompass the government when it is acting within s ome well-established authority--in that case the govern ment's power to use leniency or plea agreements in exchang e for truthful testimony. Our reasoning in this case para llels that logic.

We find no merit in the other arguments Harris rais es. 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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