FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 05-50150

v.  D.C. No.

MYKOLA IHNATENKO, CR-01-01652-JM

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

No. 05-50197 Plaintiff-Appellee,

D.C. No.

v.  CR-01-01652-JM

MYKHAILO YURCHENKO,

OPINION Defendant-Appellant. 

Appeals from the United States District Court

for the Southern District of California

Jeffrey T. Miller, District Judge, Presiding

Submitted* March 30, 2007

Filed March 30, 2007

Before: A. Wallace Tashima, Raymond C. Fisher, and

Richard C. Tallman, Circuit Judges.

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

3707
COUNSEL

Gerald Singleton, San Diego, California; Mary F. Prevost,

San Diego, California, for the appellants. 

Mark R. Rehe, Assistant United States Attorney, San Diego,

California, for the appellee. 

OPINION

TALLMAN, Circuit Judge: 

Mykola Ihnatenko and Mykhailo Yurchenko appeal their

convictions for conspiracy to possess cocaine aboard a vessel

subject to the jurisdiction of the United States in violation of

46 U.S.C. app. § 1903(a) and (j) and possession of cocaine

with intent to distribute aboard a vessel subject to the jurisdiction of the United States in violation of 46 U.S.C. app.

§ 1903(a), (c)(1)(C), and (f). Ihnatenko, the vessel engineer in

charge of fuel systems and refrigeration, and Yurchenko, the

third mate machinist aboard the smuggling vessel, were codefendants tried separately from the defendants whose convictions we upheld in United States v. Zakharov, 468 F.3d

1171 (9th Cir. 2006), and United States v. Savchenko, No. 04-

UNITED STATES v. IHNATENKO 3709
50045, 2006 WL 3825385 (9th Cir. Dec. 26, 2006) (unpublished disposition). We have jurisdiction to review appellants’

convictions pursuant to 28 U.S.C. § 1291, and we affirm. 

I

Our opinion in Zakharov recounts the facts in this case,

beginning with the April 2001 seizure in international waters

off the coast of Mexico of over ten tons of cocaine aboard the

F/V Svesda Maru, a fishing vessel registered in Belize. See

468 F.3d at 1174-75. We will not reiterate them here. 

Ihnatenko and Yurchenko were tried with six co-defendants

before the Honorable Jeffrey T. Miller of the United States

District Court for the Southern District of California. On

March 24, 2004, after a twenty-four-day jury trial, appellants

were found guilty on both counts.1

II

Appellants contend that the government violated 18 U.S.C.

§ 201(c)(2)2 in providing compensation in exchange for the

1The jury hung with respect to the counts against the remaining six

defendants, and the district court declared a mistrial. In July 2004, the

government retried its case against five of the six defendants. All five

defendants were subsequently acquitted. 

2The federal anti-gratuity statute provides that whoever 

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, . . . authorized by the laws of the United States to hear evidence or take

testimony, . . . shall be fined under this title or imprisoned for not

more than two years, or both. 

18 U.S.C. § 201(c)(2). 

3710 UNITED STATES v. IHNATENKO
cooperation of a witness, Rene Franco-Zapata (“Franco”).

The district court rejected this argument. We affirm.3

Franco received three types of benefits in exchange for his

agreement to testify on behalf of the government. These benefits include: (1) cash payments to housing providers and to

him and his family in excess of $200,000 over a fifteen-month

period; (2) promises not to prosecute him or his daughter for

any drug crimes; and (3) provision of resident alien cards

allowing Franco and his family to live and work in this country. We have previously held that § 201(c)(2) does not prohibit the government from providing immigration benefits or

immunity from prosecution to a cooperating witness. See

United States v. Feng, 277 F.3d 1151, 1154 (9th Cir. 2002)

(immigration benefits); United States v. Smith, 196 F.3d 1034,

1038-40 (9th Cir. 1999) (immunity); see also United States v.

Mattarolo, 209 F.3d 1153, 1160 (9th Cir. 2000) (leniency). 

[1] Thus, the only issue we must decide is whether the government’s provision of cash benefits or government-paid

housing to a cooperating witness violates § 201(c)(2) and

warrants a new trial. Appellants face a high hurdle in pressing

an argument that has been rejected by every other circuit to

have considered it. See United States v. Mojica-Baez, 229

F.3d 292, 301-02 (1st Cir. 2000); United States v. Febus, 218

F.3d 784, 796 (7th Cir. 2000); United States v. Harris, 210

F.3d 165, 167 (3d Cir. 2000); United States v. Anty, 203 F.3d

305, 311 (4th Cir. 2000); United States v. Barnett, 197 F.3d

138, 144-45 (5th Cir. 1999); United States v. Albanese, 195

F.3d 389, 394-95 (8th Cir. 1999); United States v. Harris, 193

F.3d 957, 958 (8th Cir. 1999). 

[2] Paid informants play a vital role in the government’s

infiltration and prosecution of major organized crime and

drug syndicates like this one. We have recognized that 

3We affirm the district court’s ruling on other issues in a memorandum

disposition filed separately. 

UNITED STATES v. IHNATENKO 3711
our criminal justice system could not adequately

function without information provided by informants

and without their sworn testimony in certain cases.

. . . [I]t is a well-known phenomen[on] that the

higher-ups in criminal enterprises attempt to insulate

themselves from detection and exposure by having

their unlawful schemes carried out by others. Without informants, law enforcement authorities would

be unable to penetrate and destroy organized crime

syndicates, drug trafficking cartels, bank frauds, telephone solicitation scams, public corruption, terrorist

gangs, money launderers, espionage rings, and the

likes. In the words of Judge Learned Hand, “Courts

have countenanced the use of informers from time

immemorial; in cases of conspiracy, or in other cases

when the crime consists of preparing for another

crime, it is usually necessary to rely upon them or

upon accomplices because the criminals will almost

certainly proceed covertly.” 

United States v. Bernal-Obeso, 989 F.2d 331, 334-35 (9th Cir.

1993) (quoting United States v. Dennis, 183 F.2d 201, 224 (2d

Cir. 1950)); see also On Lee v. United States, 343 U.S. 747,

756 (1952) (“Certainly no one would foreclose the turning of

state’s evidence by denizens of the underworld.”). Recognizing the important contribution of cooperating witnesses and

informants in our criminal justice system—and the substantial

danger that such persons face from retaliation—Congress

authorized in the Witness Security Reform Act multiple forms

of government assistance, including relocation, housing, and

payment to meet basic living expenses. See 18 U.S.C.

§ 3521(b)(1). Such compensation is necessary to assure the

safety of those who turn against their former compatriots in

the underworld. 

[3] We today join our sister circuits and hold that 18 U.S.C.

§ 201(c)(2) does not prohibit the government from paying

fees, housing, expenses, and cash rewards to any cooperating

3712 UNITED STATES v. IHNATENKO
witness, so long as the payment does not recompense any corruption of the truth of testimony. See Smith, 196 F.3d at 1039

n.5 (noting that “18 U.S.C. § 201(c)(2) might apply to a wayward prosecutor who bribes a witness to lie on the stand”). In

reaching this conclusion we stress, as did the Third and

Fourth Circuits, that “ ‘a defendant’s right to be apprised of

the government’s compensation arrangement with the witness, and to inquire about it on cross-examination, must be

vigorously protected.’ ” Harris, 210 F.3d at 167 (quoting

Anty, 203 F.3d at 312 (internal citations omitted)). The district

court did so here, and Franco was exhaustively crossexamined on these benefits by eight defense lawyers in their

efforts to discredit him. 

[4] In addition, we note that, even if appellants had proven

a violation of § 201(c)(2), they would not be entitled to a new

trial under that statute. Smith, 196 F.3d at 1040 (recognizing

that the only remedy authorized by § 201(c)(2) is criminal

prosecution of the prosecutor, leading to imprisonment or

fine). It is not a rule of exclusion that may be invoked by

defendants to thwart their criminal prosecutions. Id. 

AFFIRMED.

UNITED STATES v. IHNATENKO 3713