United States v. Macula Anty ( 2000 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 99-4077
MACULA ANTY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-98-7-F)
Argued: December 3, 1999
Decided: February 14, 2000
Before NIEMEYER and WILLIAMS, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Reversed and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Williams and Senior Judge Hamilton
joined.
_________________________________________________________________
COUNSEL
ARGUED: Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellant. Rosemary Godwin, Raleigh,
North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole,
United States Attorney, Michael G. James, Assistant United States
Attorney, Raleigh, North Carolina, for Appellant.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
After Macula Anty was convicted of conspiring to distribute
cocaine, possession of cocaine with intent to distribute, and distribu-
tion of cocaine, she made a motion for a mistrial, contending that dur-
ing her trial the government improperly introduced the testimony of
a paid informant, in violation of 18 U.S.C. § 201(c)(2) (prohibiting a
person from giving "anything of value to any person, for or because
of [that person's] testimony"). The district court agreed that the gov-
ernment's use of the paid informant's testimony against Anty violated
§ 201(c)(2) and granted her motion for a mistrial. On the govern-
ment's appeal, we conclude that § 201(c)(2) does not prohibit the
government from using the testimony of a paid informant and there-
fore reverse and remand this case for further proceedings.
I
Shortly before Anty's trial on drug charges, Anty filed a motion to
suppress the testimony of two potential government witnesses who
had entered into plea agreements with the government. She based her
motion on the decision in United States v. Singleton, 144 F.3d 1343(10th Cir. 1998), rev'd en banc, 165 F.3d 1297 (1999), which held
that government promises of leniency to a witness in exchange for
testimony violated 18 U.S.C. § 201(c)(2). The district court denied
Anty's motion with leave to renew it in the event of a conviction.
At trial, Anty objected to the testimony of another government wit-
ness, Selma Jerome, because he was a paid informant whose arrange-
ment with local law enforcement authorities required him to be
available to testify at trial. The district court permitted Jerome to tes-
tify but stated that it would revisit the issue if Anty were convicted.
Following her conviction, Anty filed a post-trial motion for a "mis-
trial," arguing that the testimony of Jerome and of an accomplice wit-
ness should have been suppressed because it was obtained in violation
of 18 U.S.C. § 201(c)(2). While the district court rejected Anty's
claim that the accomplice witness's testimony should have been sup-
2
pressed, it concluded that Jerome's testimony had been obtained in
violation of 18 U.S.C. § 201(c)(2) and should have been suppressed.
The court then invited the parties to brief whether it should order a
mistrial.
During the trial, Jerome acknowledged that he was a paid infor-
mant who had set up the sting transaction on November 7, 1997, for
which Anty was convicted. He testified that Anty personally handled
a kilogram of cocaine on that date. Anty's counsel cross-examined
Jerome -- as well as local police officers who had reached the
arrangement with Jerome -- about the compensation that Jerome
received for his assistance and used the evidence of those payments
to attack Jerome's credibility in closing arguments before the jury.
The district court instructed the jury with respect to the payments that:
The testimony of an informant, someone who provides evi-
dence against someone else for money . . . or for other per-
sonal reason or advantage, must be examined and weighed
by the jury with greater care than the testimony of a witness
who is not so motivated. The jury must determine whether
the informer's testimony has been affected by self-interest,
or by the agreement he has with the government, or his own
interest in the outcome of this case, or by prejudice against
the defendant.
The record reveals that Jerome first contacted the Dunn, North Car-
olina, Police Department in early October 1997 to alert them that he
had information about drug dealing in Sampson County, North Caro-
lina. The Dunn police referred Jerome to authorities in Sampson
County but asked Jerome to contact the Dunn police if he became
aware of any narcotics activity taking place in Dunn.
Approximately a week later, Jerome contacted the Dunn police
again to inform them that drug dealers were operating out of a hotel
in Dunn. The police arranged for Jerome to perform a controlled pur-
chase of two ounces of crack cocaine from the dealers, and Jerome
was paid $500 for his assistance, even though he offered to work for
free because, he said, his father had been killed by drug dealers.
Based on Jerome's successful undercover purchase, the Dunn
police decided to use Jerome to set up two sting operations involving
3
larger amounts of cocaine. The second sting operation, performed on
November 7, 1997, led to the arrest of Anty and her co-conspirators.
For his assistance in the two sting operations, as well as his willing-
ness to testify at trial, Jerome was paid $10,000. He received $6,000
on November 7, 1997 from the Dunn Police Department; $2,000 on
November 17 from the Sampson County Sheriff's Department; and a
final installment of $2,000 in May 1998 from the Sanford Police
Department. The police testified that they determine the amount of
compensation an informant will receive by evaluating the information
provided and the benefits to be derived from the information. When
a drug deal is involved, the officers stated they also consider the
quantity of drugs and the identity of the persons arrested.
Based on these facts, the district court concluded, in an order
entered November 17, 1998, that Jerome had been paid for his testi-
mony in violation of 18 U.S.C. § 201(c)(2) and that his testimony
should be suppressed. Thereafter, following the parties' briefing, the
court granted Anty's motion for a mistrial by order entered January
25, 1999. It also concluded that "the Double Jeopardy Clause of the
Fifth Amendment does not bar retrial" and directed the clerk to set the
matter for retrial during the February 22, 1999 term of court. The gov-
ernment took this interlocutory appeal from the court's January 25,
1999 order granting Anty's motion for a mistrial based on its Novem-
ber 17, 1998 order granting Anty's motion to suppress the testimony
of Jerome. See 18 U.S.C. § 3731.
II
The government contends that the district court erred in concluding
that it was barred from presenting the testimony of informants who
were paid money to assist the government in its criminal investigation
and to testify at trial. It argues that a well-established body of law
authorizes the government to pay informants to provide information
and to testify in the prosecution of crimes, and that Congress, in
enacting 18 U.S.C. § 201(c)(1), never intended to criminalize the
practice. Secondarily, the government contends that a violation of 18
U.S.C. § 201(c)(2) "would not warrant the application of an exclu-
sionary rule." It argues that the suppression of an informant's testi-
mony is "an excessive and unnecessary form of relief for a violation
of § 201(c)(2)."
4
Anty contends that the mistrial was appropriate because the gov-
ernment offered the testimony of a paid informant and 18 U.S.C.
§ 201(c)(2) "plainly states that it is unlawful to offer or give anything
of value for or because of testimony in a trial." Noting that the infor-
mant in this case received cash payments for assisting the government
in uncovering the criminal conduct and for testifying in court, Anty
argues that the district court acted within its authority by "excluding
the testimony . . . and granting a new trial as a remedy to deter future
violations of the federal gratuities statute."
The issue of whether § 201(c)(2) prohibits the government from
offering the testimony of a paid informant when giving testimony is
part of the arrangement with the informant is one of first impression
in this circuit. Resolution of this dispute involves the proper interpre-
tation of 18 U.S.C. § 201(c)(2), which provides:
Whoever . . . directly or indirectly, gives, offers or promises
anything of value to any person, for or because of the testi-
mony under oath or affirmation given or to be given by such
person as a witness upon a trial, hearing, or other proceed-
ing, 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.
The original enactment of this version of the statute in 1962 consti-
tuted part of an effort by Congress "to strengthen the criminal laws
relating to bribery, graft, and conflicts of interest." S. Rep. No. 87-
2213, at 1, reprinted in 1962 U.S.C.C.A.N. 3852, 3852; see also Pub.
L. No. 87-849, 76 Stat. 1119 (entitled "An Act to strengthen the crim-
inal laws relating to bribery, graft, and conflicts of interest, and for
other purposes" and captioning § 201 "Bribery of public officials and
witnesses"). Continuing a strong prohibition against the bribery of
witnesses was an important part of Congress' effort to protect the
integrity of the judicial process. In this respect,§ 201 supplements
other statutes aimed at assuring that only truthful testimony is
received from witnesses in court. See, e.g., 18 U.S.C. § 1512 (prohib-
iting witness tampering); 18 U.S.C. § 1622 (prohibiting subornation
of perjury).
5
In response to the Tenth Circuit's panel decision in United States
v. Singleton, 144 F.3d 1343 (10th Cir. 1998), criminal defendants
have repeatedly relied on § 201(c)(2) to argue that the government is
prohibited from entering into any deal with a witness that includes
giving testimony against a defendant, despite the fact that the Tenth
Circuit, sitting en banc, reversed its earlier position. See United States
v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc). After consid-
ering the "Singleton" argument, virtually every circuit court has
rejected it. And recently, in United States v. Richardson, 195 F.3d 192(4th Cir. 1999), we joined those courts, holding that "the term ``who-
ever' as used in § 201(c)(2) does not include the United States acting
in accordance with its statutory authority to use immunity, leniency,
and plea agreements to obtain truthful testimony." 195 F.3d at 196-97.1
We based our analysis on the rule stated in Nardone v. United States,
302 U.S. 379, 383-84 (1937), that a general term should be read to
exclude the United States when to do otherwise "would deprive the
sovereign of a recognized or established prerogative" or would "work
obvious absurdity." In applying this rule, we reasoned as follows:
To interpret § 201(c)(2) to include the United States would
implicitly repeal other statutes and rob the government of its
long-standing prerogatives to use immunity and leniency in
plea bargaining to obtain truthful testimony from one crimi-
nal against another -- testimony that in many cases is essen-
tial to the enforcement of law and the promotion of justice.
* * *
Interpreting § 201(c)(2) to apply to the government would
also work an obvious absurdity as it would lead to the con-
clusion that Congress, through statutes such as 18 U.S.C.
§ 3553(e), 28 U.S.C. § 994(n), and 18 U.S.C. §§ 6002-6003,
is authorizing practices that it has prohibited in 18 U.S.C.
§ 201(c)(2).
Richardson, 195 F.3d at 196.
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1 The district court did not have the benefit of Richardson and the many
circuit court decisions that have address the " Singleton" issue.
6
While the holding of Richardson does not directly dispose of this
case, which involves the payment of money to informants for assisting
in the investigation and prosecution of a criminal offense, including
the giving of testimony, the reasoning in Richardson is apropos. To
interpret § 201(c)(2) to preclude the payment of money to informants
to assist in investigating and prosecuting crimes, by giving truthful
testimony, would not only "rob the government of its long-standing
prerogative[ ]" to do so as established by statute and recognized prac-
tice, it would also "work an obvious absurdity" in implicitly repealing
numerous statutes that authorize the payment of expenses, fees, and
rewards to witnesses. Id.; see also Nardone, 302 U.S. at 383-84. More
important, the statute itself appears to preserve the government's pre-
rogative to pay witnesses "witness fees provided by law." See 18
U.S.C. § 201(d).
Through a broad range of statues, Congress has authorized the pay-
ment of expenses, fees, and rewards to cooperating witnesses. Section
1821 of Title 28 authorizes generally the payment of per diem, mile-
age, and subsistence expenses to witnesses, as does Federal Rule of
Criminal Procedure 17(b) (authorizing the payment of costs and
expenses for subpoenaed witnesses). See also 18 U.S.C. § 3521(b)
(authorizing the payment of expenses for witnesses under relocation
and protection statute); 18 U.S.C. § 3195 (authorizing payment of all
"fees and costs of every nature" involving extradition). Congress has
also authorized the payment of fixed attendance fees to witnesses. See
28 U.S.C. § 1821(b) (authorizing the payment of a $40 "attendance
fee"); Fed. R. Crim. P. 17(d) (requiring payment of attendance fee and
mileage on serving subpoena).
Additionally, Congress has authorized the payment of rewards in
indeterminate amounts for "information" and"services" to assist in
the apprehension, prosecution, or conviction of violators of various
criminal laws. See, e.g., 18 U.S.C. § 1751(g) (authorizing payments
for "information and services" concerning violations of statute prohib-
iting the assassination, assault, or kidnapping of the President); 18
U.S.C. § 3056(c)(1)(D) (authorizing Secret Service to pay "rewards
for services and information" assisting the Secret Service in its law
enforcement efforts); 18 U.S.C. § 3059(b) (funding the Attorney Gen-
eral's payment of rewards for "service or information" to apprehend
specified fugitives); 18 U.S.C. § 3059A(a)(1) (authorizing Attorney
7
General to "make payments" for information leading to prosecution
of financial-institutions offenses); 18 U.S.C. § 3059B (authorizing
payment of reward to "any individual who assists the Department of
Justice in performing its functions"); 19 U.S.C.§ 1619 (authorizing
rewards for "information" regarding violations of custom laws); 21
U.S.C. § 886(a) (authorizing payments in connection with drug
enforcement of "such sum or sums of money as[the Attorney Gen-
eral] may deem appropriate, without reference to any moieties or
rewards to which such person may otherwise be entitled by law"); 26
U.S.C. § 7623 (authorizing payments deemed necessary to detect and
prosecute tax offenders). In authorizing the payment of rewards for
information, assistance, and services in the enforcement of criminal
statutes, Congress surely must have contemplated payments to infor-
mants for assisting both in investigations and by testifying.
In this case, the $10,000 in payments made to Jerome, if properly
imputed to the government -- a fact that we do not decide but assume
for purposes of this discussion -- could well be a fee or reward for
assistance in drug enforcement efforts, as authorized by 21 U.S.C.
§ 886(a), or for assisting the Department of Justice in performing its
functions, as authorized by 18 U.S.C. § 3059B. But even if such pay-
ments do not constitute "fees" expressly excepted from 18 U.S.C.
§ 201(c)(2) by § 201(d),2 the government's use of the payments to
uncover criminal conduct and obtain truthful court testimony is not
prohibited by § 201(c)(2) under the more general reasoning of
Richardson.
The use of informants to uncover criminal conduct and to prosecute
violators is a long-standing and established practice. The Supreme
Court, quoting Judge Learned Hand, has observed that"``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
_________________________________________________________________
2 A broad reading of the term"witness fees" as used in § 201(d) to
apply to any lawful payment to a witness finds support in the House
Report that accompanied the 1962 enactment of the provision. See H.R.
Rep. No. 87-748, at 19 (1961) ("[Section 201(d)] makes it clear that the
subsections dealing with witnesses will not prohibit payments to wit-
nesses otherwise proper and lawful") (emphasis added).
8
accomplices.'" Hoffa v. United States, 385 U.S. 293, 311 (1966)
(quoting United States v. Dennis, 183 F.2d 201, 224 (2nd Cir. 1950),
aff'd, 341 U.S. 494 (1951)). In United States v. Bagley, 473 U.S. 667(1985), the Supreme Court considered whether the prosecution's fail-
ure to disclose the compensation arrangement of a paid informant
constituted a Brady violation. Although the informant in that case was
paid $300 under an arrangement that expressly required him "to tes-
tify against the violator in federal court," the Court raised no question
about the legality of the arrangement. Id. at 671.
Similarly, we have regularly reviewed trials in which paid govern-
ment informants served as witnesses, considering such issues as paid
informants' competency as witnesses, their credibility, the necessity
for cautionary jury instructions regarding their credibility, and the dis-
closure of their status to the defense. In none of the cases did we
express any doubt about the legality of the practice. See, e.g., United
States v. Mason, 993 F.2d 406, 409-10 (4th Cir. 1993); United States
v. Brooks, 928 F.2d 1403, 1409-10 (4th Cir. 1991); United States v.
Chavis, 880 F.2d 788, 793-94 (4th Cir. 1989); United States v. Melia,
691 F.2d 672, 675-76 (4th Cir. 1982); United States v. Hung, 667
F.2d 1105, 1107 (4th Cir. 1981); United States v. Gregorio, 497 F.2d
1253, 1261 (4th Cir. 1974); Meyers v. United States, 207 F.2d 413,
413 (4th Cir. 1953) (per curiam).
More generally, a pattern jury instruction has been developed to
address the credibility of testimony by paid informants, indicating that
the use of such testimony is a common and accepted practice. See
Edward J. Devitt et al., Federal Jury Practice and Instructions
§ 15.02 (1992). And the district court gave such an instruction in this
case.
Section 201(c)(2), which targets, through concededly broad lan-
guage, the bribery of witnesses by means of an illegal gratuity,3 surely
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3 The offenses covered by 18 U.S.C. § 201, captioned "Bribery of pub-
lic officials and witnesses," include the traditional bribery of a witness,
involving a payment made to a witness specifically to influence testi-
mony, see § 201(b)(3), as well as the lesser included offense of illegal
gratuity, involving the payment of a witness "for or because of" such tes-
timony, see § 201(c)(2). Cf. United States v. Muldoon, 931 F.2d 282, 289
(4th Cir. 1991) (noting that an illegal gratuity to a public official, as pro-
hibited by § 201(c)(1)(a), is a lesser included offense of bribery of a pub-
lic official, as prohibited by § 201(b)(1)).
9
was not intended to bar the long-standing practice of paying infor-
mants to assist the government in uncovering criminal conduct and
prosecuting such conduct in court with truthful testimony. By the
same token, Congress could not have intended an implicit repeal of
the statutes that explicitly authorize these practices in specified
circumstances.4 The prosecution of crime by authorized government
_________________________________________________________________
4 Even though the language of 18 U.S.C. § 201(c)(2) is remarkably
broad, to make sense of it, the prohibition must be understood to address
efforts to corrupt or to influence testimony. The statute itself exempts
any payment of "witness fees" and expenses"provided by law." See 18
U.S.C. § 201(d). Moreover, while the current language prohibiting pay-
ment "for or because of the testimony" of a witness does not explicitly
limit its coverage to influenced testimony, a careful retracing of the stat-
ute's stylistic development since 1909 reveals no effort to alter the origi-
nal intent of protecting the integrity of witnesses' testimony. The
precedessor version of § 201's provisions relating to witnesses, for
example, consisted of two separate provisions, one aimed at those who
pay for testimony and the other aimed at witnesses who receive such pay-
ments. See 18 U.S.C. §§ 209, 210 (1958 ed.). Both, however, prohibited
at their core the "influencing" of testimony. The provision aimed at
paying to influence testimony provided in relevant part:
Whoever . . . gives or offers any money or thing of value, or . . .
any other bribe [to] a witness . . . upon any agreement or under-
standing that his testimony shall be influenced thereby . . . shall
be fined . . . or imprisoned . . . or both.
18 U.S.C. § 209 (1958 ed.) (emphasis added). Similarly, § 210 made it
unlawful for a witness to receive
a bribe, upon any agreement or understanding that his testimony
shall be influenced thereby . . . or because of such testimony . . . .
18 U.S.C. § 210 (1958 ed.) (emphasis added). The prohibition against
payment "because of" testimony undoubtedly was intended to extend the
scope of the statute to cover not only agreements and understandings, but
also unilateral payments, i.e. gratuities, for or because of "influenced"
testimony. In any event, the target was not payments for or because of
truthful testimony, but payments for or because of"influenced" or tainted
testimony -- testimony that amounted to a corruption of the truth. By all
indications, the 1962 revisions of these provisions, creating the language
of current § 201(c)(2), were intended to be primarily stylistic. See S. Rep.
No. 87-2213, reprinted in 1962 U.S.C.C.A.N. 3852, 3853 (indicating that
the effort was to collect in one provision and make uniform the earlier
disparate provisions related to bribery). The revisions do not indicate that
Congress intended to broaden the scope of the prohibition to extend to
payments made "for or because of" innocent conduct.
10
agents with authorized mechanisms lies at the heart of the public's
interest in having the criminal laws enforced, and when interpreting
§ 201(c)(2), we must not presume that Congress prohibited govern-
ment agents from using these mechanisms unless such a prohibition
is unmistakably clear in the language of the statute. See United States
v. California, 297 U.S. 175, 186 (1936) (recognizing the "canon of
construction that a sovereign is presumptively not intended to be
bound by its own statute unless named in it") (citing Dollar Savings
Bank v. United States, 86 U.S. (19 Wall.) 227, 239 (1874)), cf.
Nardone, 302 U.S. at 383-84. The general prohibition of § 201(c)(2)
-- "whoever . . . gives . . . anything of value to any person, for or
because of the testimony . . . to be given by such person as a witness
upon a trial" -- does not unmistakably manifest an intent by the sov-
ereign to bind itself to the prosecutorial limitations urged by Anty in
this case. See also Will v. Michigan Dep't of State Police, 491 U.S.
58 (1989).
Accordingly, we hold that 18 U.S.C. § 201(c)(2) does not prohibit
the United States from acting in accordance with long-standing prac-
tice and statutory authority to pay fees, expenses, and rewards to
informants even when the payment is solely for testimony, so long as
the payment is not for or because of any corruption of the truth of tes-
timony. In so holding, we join the two other circuits to have consid-
ered this issue. See 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.2d 957 (8th Cir. 1999).
Legitimizing the payment of money to witnesses can be a risky
business, particularly when the payment greatly outstrips any antici-
pated expense. The payment becomes a reward, and as with any
reward, the danger is that the recipient, out of gratitude or greed,
might be inclined to alter or bend the truth. Accordingly, the govern-
ment must act with great care when engaging in the practice of paying
for more than expenses. Moreover, a defendant's right to be apprised
of the government's compensation arrangement with the witness, see
Bagley, 473 U.S. at 683-84, and to inquire about it on cross-
examination, cf. Davis v. Alaska, 415 U.S. 308, 315-17 (1974), must
be vigorously protected. The adversary process must be allowed to
probe for possible corruption of testimony, because it is this corrup-
tion at which 18 U.S.C. § 201(c)(2) aims.
11
In this case, there is no evidence in the record that government
prosecutors (or state police officials) sought to"bribe" Jerome to cor-
rupt his testimony. On the contrary, Jerome volunteered to assist, and
the police thereupon used him as a paid informant to uncover criminal
conduct and to give testimony about the conduct in court. Moreover,
Anty does not argue that Jerome's testimony was false. She argues
rather that the evidence should have been excluded solely because
Jerome received payment for his assistance, including his testimony
at trial.
Because we find no violation of § 201(c)(2), we need not reach the
question of whether the appropriate sanction for such a violation is
the exclusion of the testimony at trial. We reverse the district court's
orders of November 17, 1998 (finding a violation of 18 U.S.C.
§ 201(c)(2)) and January 25, 1999 (ordering a mistrial) and remand
the case to the district court for further proceedings.
REVERSED AND REMANDED
12