United States v. Dawson, Pierre ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-2557, 04-2592
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PIERRE DAWSON and ALPHONSO INGRAM,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 02 CR 688—Elaine E. Bucklo, Judge.
____________
ARGUED JUNE 3, 2005—DECIDED SEPTEMBER 28, 2005
____________
Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The defendants were convicted
by a jury of federal drug offenses and sentenced to 300
months in prison (Ingram) and 360 months (Dawson).
Among the grounds for reversal that they press on us with
misplaced zeal in more than 130 pages of briefs is that in
every trial of a federal drug offender the prosecution must
prove that the defendant’s offense had an actual impact on
interstate or foreign commerce. Otherwise, they argue, the
prosecution may exceed the regulatory power conferred on
Congress by the commerce clause of the Constitution. The
statutes under which the defendants were prosecuted, 21
2 Nos. 04-2557, 04-2592
U.S.C. §§ 841, 846, do not, it is true, make effect on com-
merce an element of the crime, and so no proof of such an
effect was presented at the trial. But it is common knowl-
edge that the traffic in most illegal drugs—certainly includ-
ing cocaine, the drug involved in this case, very little of
which is manufactured in the United States because no coca
is grown here—is national or (in the case of cocaine)
international rather than local. Of course there are local sales
of the drugs, at the end of the commerce chain; but these,
taken in the aggregate, certainly affect the interstate and
international traffic in these drugs, and that is the only
handle that Congress requires to be empowered by the
commerce clause to legislate with respect to the local sales.
Gonzales v. Raich, 125 S. Ct. 2195, 2205-06 (2005). The Lopez
decision, on which the defendants principally rely,
reaffirmed Wickard v. Filburn, 317 U.S. 111 (1942), which had
held that wheat grown by a farmer for his own consumption
was within the commerce power because it is traded in a
national market and home consumption affects the amount
available for that trade. United States v. Lopez, 514 U.S. 549,
559-60 (1995). Similarly, local sales of drugs affect the
demand for their importation. United States v. Thomas, 159
F.3d 296, 297-98 (7th Cir. 1998).
The government’s principal evidence of the defendants’
guilt consisted of testimony and recordings by Oscar
Diaz, who after years as a major drug dealer following
his illegal entry into the United States had agreed to co-
operate with the DEA in exchange for 20 percent of any
proceeds of drug sales that the government recovered as a
result of Diaz’s efforts; he received additional compensation
in an unknown amount. The DEA also, though apparently
not pursuant to an explicit agreement with Diaz, forbore to
inform the INS that he had, as the DEA knew, lied on his
application for U.S. citizenship when he said he hadn’t
Nos. 04-2557, 04-2592 3
committed any crimes. (By the time of trial, Diaz was a U.S.
citizen.) He was also assured that as long as he continued
cooperating and told the truth, he would not be prosecuted
for his past drug dealing. Before and after becoming a
government informant, Diaz sold cocaine to the defendants.
Diaz recorded (or transmitted to government agents
who recorded) a number of his conversations, both tele-
phonic and in person, with the two defendants. He later
reviewed the tapes and testified at trial that they accurately
recorded the conversations, although not completely;
some words were unintelligible and Diaz did not have
an independent recollection of what they were. There
were also gaps in the tapes—sometimes the signal from
the transmitter was interrupted, and sometimes Diaz
had failed to start his recorder at the beginning of the
conversation or had ended it before the conversation ended.
There may also have been erasures, though these may have
been of conversations that did not involve the defendants.
No “chain of custody” was established; that is, the govern-
ment could not account for every person who had had
access to the recordings between when they were made and
the trial.
Because of these irregularities, the defendants argue that
the tapes were not “authenticated” and should therefore
have been excluded from evidence. Fed. R. Evid. 901.
Evidence that is not oral testimony must be shown to be
what it purports to be rather than a forgery or other fabrica-
tion or an innocent misidentification. But there are no rigid
rules, such as chain of custody, for authentication; all that is
required is adequate evidence of genuineness. United States
v. Brown, 136 F.3d 1176, 1181 (7th Cir. 1998); United States v.
Tropeano, 252 F.3d 653, 661 (2d Cir. 2001). (There are such
rules for electronic surveillance governed by Title III, but
Title III is inapplicable to conversations that, as here, are
4 Nos. 04-2557, 04-2592
recorded with the consent of one of the participants. 18
U.S.C. § 2511(2)(c); United States v. Eschweiler, 745 F.2d 435,
437 (7th Cir. 1984); Meredith v. Gavin, 446 F.2d 794, 798 (8th
Cir. 1971).) The defendants do not deny that it is their voices
on the tapes. Nor is there any indication of splicing or other
alterations that might have changed the meaning of what
they had actually said. The only complaint is that the gaps
or erasures might contain exculpatory material, although
there is no evidence that they do. Even if they did, this
would not “de-authenticate,” and hence make inadmissible,
the tapes of the conversations that were recorded. United
States v. Robinson, 956 F.2d 1388, 1395 (7th Cir. 1992); United
States v. Vega, 860 F.2d 779, 790-91 (7th Cir. 1988); United
States v. Calderin-Rodriguez, 244 F.3d 977, 987 (8th Cir. 2001).
And it would not raise a Brady issue even if (though there is
no indication of this) the government was aware of what
was said in the conversations but not recorded, because
the defendants, being parties to the conversation, were
equally aware. Brady requires disclosure only of exculpatory
material known to the government but not to the defendant.
E.g., Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003); Buie
v. McAdory, 341 F.3d 623, 625-26 (7th Cir. 2003); Fullwood v.
Lee, 290 F.3d 663, 685-86 (4th Cir. 2002).
The defendants argue that Diaz should not have been
allowed to testify at all (in which event he could not have
authenticated the tapes, and so the government’s case
would have collapsed) because of the benefits he received in
exchange for his assistance to the prosecution, in particular
the 20 percent bounty that he received. The defendants
imprecisely describe this as a contingent fee for his testi-
mony. A bounty and a witness fee are different. A bounty is
a reward for rendering a service that the offeror wants done,
whether it’s shooting wolves that prey on sheep or catching
criminals who prey on humans. E.g., 19 U.S.C. § 1619;
Nos. 04-2557, 04-2592 5
Crabill v. Trans Union, L.L.C., 259 F.3d 662, 665 (7th Cir.
2001); United States v. Jennings, 160 F.3d 1006, 1015 n. 3 (4th
Cir. 1998); Doe v. United States, 100 F.3d 1576, 1581-82 (Fed.
Cir. 1996); cf. United States v. Cervantes-Pacheco, 826 F.2d 310,
311-12 (5th Cir. 1987) (en banc). Here the bounty was for
helping the authorities nail drug offenders. Although rather
than being a flat fee it was a percentage of the money that
the government recovered from the offenders, United States
v. Estrada, 256 F.3d 466, 468 (7th Cir. 2001), this form of
compensation is what economists call “incentive compati-
ble” (“motivational” would be an alternative term for it): it
gives the bounty hunter an incentive to concentrate on the
biggest prey.
The bounty was not a contingent fee for testimony
because it was paid whether or not Diaz testified. Since
most cases, including forfeiture cases (and the forfeiture
components of criminal cases), are settled rather than tried,
probably Diaz usually earned the bounty without having to
testify. Of course when he did testify, as in this case, his
bounty may have been riding on the outcome (though this
is unclear), giving him a monetary incentive to testify
favorably to the government. From the standpoint of
incentive to lie, a bounty based on an adjudicative out-
come is much more suspect than one obtained simply by
procuring a seizure of forfeitable goods. And the defendants
are right to point out that paying witnesses (other than
experts) for their testimony (beyond the tiny fees permitted,
in the case of federal trials, by the Judicial Code, 28 U.S.C.
§ 1821) is forbidden. 18 U.S.C. § 201(c)(2). Even an expert
witness, and a fortiori an occurrence witness, may not be
paid more if the party for whom he is testifying wins the
case. Tagatz v. Marquette University, 861 F.2d 1040, 1042 (7th
Cir. 1988); United States v. Cervantes-Pacheco, supra, 826 F.2d
at 313; United States v. Gray, 626 F.2d 494, 499 (5th Cir. 1980);
United States v. Palow, 777 F.2d 52, 54 (1st Cir. 1985).
6 Nos. 04-2557, 04-2592
Yet whether violation even of that rule requires exclu-
sion of the testimony from being used against a defendant
is a separate question. Tagatz v. Marquette University, supra,
861 F.2d at 1042; United States v. Valona, 834 F.2d 1334, 1343-
44 (7th Cir. 1987); United States v. Cervantes-Pacheco, supra,
826 F.2d at 316 (concurring opinion). Exclusion confers
windfalls on the guilty and therefore, at least as a device for
enforcing nonconstitutional rules, is disfavored. United
States v. Caceres, 440 U.S. 741, 755-56 (1979) (“a
rigid application of an exclusionary rule to every regulatory
violation could have a serious deterrent impact on the
formulation of additional standards to govern prosecutorial
and police procedures”); Buntrock v. SEC, 347 F.3d 995, 999
(7th Cir. 2003); United States v. Newell, 239 F.3d 917, 921 (7th
Cir. 2001) (“exclusionary rules are disfavored as remedies
for nonconstitutional violations of law”); United States v.
Gilbert, 942 F.2d 1537, 1541-42 (11th Cir. 1991). An
exclusionary rule would be not only costly but also gratu-
itous in the present setting, because a jury should be
competent to discount appropriately testimony given under
a powerful inducement to lie. An exclusionary rule for that
class of evidence was rejected in United States v. Condon, 170
F.3d 687, 688-89 (7th Cir. 1999), and cases cited in that
opinion. It should not be resurrected, whether in the form of
the discredited “outrageous government conduct” doctrine
here futilely pressed on us by the defendants, United States
v. Sherman, 268 F.3d 539, 550 (7th Cir. 2001); United States v.
Boyd, 55 F.3d 239, 241-42 (7th Cir. 1995); United States v.
Nolan-Cooper, 155 F.3d 221, 229-30 (3d Cir. 1998), or by
raising the bar of Rule 403 and presuming that evidence
given under strong inducements—such as the bounty at
issue here, not to mention permitting Diaz to become a
citizen and escape criminal punishment for the drug dealing
that he engaged in before he agreed to become a govern-
ment informant—is so unreliable that its probative value is
clearly outweighed by a tendency to confuse the jury.
Nos. 04-2557, 04-2592 7
Any general policy (whether enforced by exclusion or
by some other means) against giving a witness inducements
to testify, rather than relying entirely on his love of truth or
the terrors of the oath, would require reinstating the old rule
(illustrated by the trial of the eponymous hero of The
Pickwick Papers for breach of promise) that the party to
a case may not testify at all because he has an interest,
pecuniary or otherwise, in the outcome and is therefore not
a disinterested witness. Williams S. Holdsworth, Charles
Dickens as a Legal Historian 132-35 (1928). Most of the key
witnesses in cases of drug dealing and other “victimless”
crimes (that is, crimes consisting of voluntary transac-
tions, so that there is no complaining victim) are crim-
inals testifying in the hope of obtaining leniency or other
benefits from the government. Such testimony is frequently
indispensable, and it is not worthless; Diaz’s testimony,
for example, was amply corroborated, and not only by
the recordings.
Judges are in no position to evaluate the government’s
need to offer monetary or other inducements to the crimi-
nals whom it hopes to enlist in the “war against drugs.”
Should we tell the Justice Department that 20 percent
was too great a bounty to pay Diaz? That 5 percent would
have been sufficient? That too-generous bounties might
actually induce people to become drug dealers, in the
thought that if the business becomes too hot they can
always enlist as bounty hunters for the DEA? Our job, so far
as it relates to the question whether Diaz should have been
excluded from testifying at all, is to make sure that grossly
unreliable evidence is not used to convict a defendant. We
do this by requiring (in effect) that the inducements be
disclosed to the jury, which can use its common sense to
screen out evidence that it finds to be wholly unreliable
because of the inducements that the witness received.
8 Nos. 04-2557, 04-2592
Wisehart v. Davis, 408 F.3d 321, 323-24 (7th Cir. 2005). The
more extravagant the blandishments, the more likely the
jury is to discredit the witnesses who received them.
Another issue presented by the appeals concerns the
judge’s response to a note that she received from the jury
during its deliberations. The note asked whether “given the
wording [in the indictment] ‘Pierre Dawson and Alfonso
Ingram did conspire with each other . . .,’ can one defen-
dant be separate from the other? It’s difficult to establish
a separate verdict given the wording.” The judge re-
sponded: “In answer to your question, a conspiracy involves
an agreement between a defendant and one or more other
persons to accomplish an illegal purpose. Therefore, it is
possible to make an individual determination as to each
defendant.” The defendants argue that the judge should
have said “must make an individual determination” rather
than “it is possible to make an individual determination,”
since her wording may have been understood to mean that
the jury didn’t have to consider the guilt or innocence of
each defendant separately.
But it is better for a trial judge to answer the question that
the jury asks than another question, unless answering
just the jury’s question would entrench some misunder-
standing revealed by their question. The jury asked “can
one defendant be separate from the other” and the judge
answered, “yes, one defendant can [’it is possible’] be
separated from the other.” Had the judge answered “not
only can, but must,” this might have set the jurors to
scratching their heads, wondering what they had missed.
In her original instructions the judge had told the jury that
“even though the defendants are being tried together, you
must give each of them separate consideration . . . . You
must separate consideration both to each count and to each
Nos. 04-2557, 04-2592 9
defendant.” The jury was not questioning that instruction.
It was asking whether it was possible, given that the
defendants were accused of conspiring with each other, to
convict (or acquit) one defendant but not the other. It was
possible, as the judge instructed, but only if there were
additional conspirators.
If the only conspirators were Dawson and Ingram (Diaz,
who was working undercover for the government when the
transactions for which the defendants were prosecuted were
made, could not count as a conspirator, United States v. Duff,
76 F.3d 122, 127 (7th Cir. 1996)), then either both were guilty
of conspiracy or neither. In that case, to tell the jury that
they “must” separate the defendants might well have
misled them, in part by giving undue emphasis to the
“separate consideration” instruction. There was, however,
evidence of other, though uncharged, conspirators with
Dawson and Ingram in their very large drug business. And
so the jury, if for example it thought the evidence of
Ingram’s participation in the conspiracy weak (the evidence
of Dawson’s participation was very strong), could “sepa-
rate” the defendants and find only Dawson guilty of
conspiracy. The supplemental instruction permitted, but
rightly did not compel, such separation, since, to repeat, if
the jury found that Dawson and Ingram were the sole
conspirators, their verdict on the conspiracy count would
have to be the same for both of them. It would, however,
have been better had the instruction told the jury explicitly
that the conspiracy could have involved other persons
besides just the defendants and the informant.
In suppression hearings in two previous cases, involv-
ing other defendants, the trial judges had disbelieved
testimony by three government agents who also testified for
the prosecution in our case. Defense counsel in our case
wanted to use those judges’ rulings to impeach the three
10 Nos. 04-2557, 04-2592
witnesses’ testimony. The judge refused on the basis of Rule
608(b) of the Federal Rules of Evidence, which provides that
“specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’ character
for truthfulness, other than conviction of crime as provided
in rule 609, may not be proved by extrinsic evidence.” Our
defendants were not proposing to use extrinsic evidence,
however, but merely to ask each witness whether a judge
had disbelieved him or her in a previous case. But the error
was harmless. In plea bargains that resolved the previous
cases, the defendants had acknowledged that the witnesses
whom the judges had disbelieved had been telling the truth.
The prosecutor would have trotted out the plea bargains on
redirect examination in our case, thereby neutering the
cross-examination.
Ingram complains that he should not have been denied a
sentencing discount for having been a minor participant in
the conspiracy. U.S.S.G. § 3B1.2(b). The government argues
that though Diaz’s dealings were mainly with Dawson there
was evidence that Ingram was actually the kingpin. The
government points out that the higher you are in an illegal
business, the less likely you are to be present at individual
transactions, since that would increase your chance of being
arrested. Leaders rationally as well as selfishly seek to
insulate themselves from the risks to which their underlings
are exposed, because a leader is a scarcer commodity than
a follower. Steven D. Levitt & Sudhir Alladi Venkatesh, “An
Economic Analysis of a Drug Selling Gang’s Finances,” 115
Q.J. Econ. 755, 761-62 (2000). The larger the transaction,
however, the likelier the leader is to be present. At a sale of
38 kilograms of cocaine, Ingram carried the $269,000 in cash
for the purchase price from Memphis, the headquarters of
the gang, and assured Diaz that the deal would go through
and that Diaz would get all the money. That was the talk
Nos. 04-2557, 04-2592 11
not of a courier but of a manager, Dawson’s equal or
superior. And another witness testified that it was Ingram
who always took possession of the drugs that the gang held
at its Memphis headquarters.
So we find no error, but since the sentencing determina-
tions were made under the pre-Booker regime, we have to
order the limited Paladino remand. United States v. Paladino,
401 F.3d 471, 483-84 (7th Cir. 2005).
WILLIAMS, Circuit Judge, dissenting. Whether it be termed
a “contingent fee” or “bounty”—an expression even less
palatable and more indicative of this practice—is a matter
of semantics and here unimportant. What is important is the
structure of the agreement that the government has
brokered here with its witness, and that structure ultimately
leaves the government witness financially motivated in the
conviction of the defendants.
Here, as a part of his agreement with the government
to serve as an informant, Diaz was to receive up to 20%
of any money seized and forfeited as a result of his co-
operation. Pursuant to the deal, if (and only if) a conviction
or plea was secured, and the seized money forfeited, the
informant would get a piece of the forfeiture. The majority
says the threat of harm this arrangement poses is minimized
because Diaz got paid regardless of whether or not he
testified, and that most cases get settled rather than tried.
But the case at bar is not most cases. This case was tried, and
12 Nos. 04-2557, 04-2592
Diaz’s testimony was an integral part of it. Indeed, as the
majority notes, “the government’s case would have col-
lapsed” without it. At bottom, the operative facts of this case
are clear: Diaz would get proceeds from the Dawson and
Ingram bust only if the defendants were convicted, and he
testified for the government in the trial designed to secure
that conviction. Put differently, Diaz was paid only if the
party for whom he was testifying won the case.
There is little doubt that Diaz’s bounty was “riding on the
outcome” of the Dawson and Ingram prosecution. Diaz
testified to the arrangement on direct examination by
the government, admitting that he “could get up to 20
1
percent .” Even the government concedes that “Diaz stood
to receive up to 20% of any money seized and forfeited
resulting from Diaz’s cooperation.” Appellee Br. at 33.
What’s more, Diaz knew almost exactly how much was
seized from the defendants at the time he testified. We
know this because he offered testimony as to the exact
dollar figure seized from Dawson and Ingram at the
2
bust—$269,000. Thus, not only was Diaz able to give his
1
Trial Transcript at 180-81:
Q: [W]hat’s your understanding as to whether you will re-
ceive additional money for your cooperation in this case?
Diaz: They didn’t tell me nothing. They just told me that if it
was any moneys, I could get up to 20 percent.
Q: Any money seized, that you can get up to 20 percent of
the money that’s seized, is that your understanding?
Diaz: Yes.
2
Trial transcript at 181:
(continued...)
Nos. 04-2557, 04-2592 13
financial motivation in the defendants’ conviction a
rough dollar figure, but he also, by providing testimonial
evidence as to the amount of currency the government
seized from Dawson and Ingram, helped make the gov-
ernment’s case for forfeiture itself.
Nor is it unclear whether the government pursued the
forfeiture of those seized assets. The government sought
those assets from the outset, as page three of the November
19, 2002, indictment against the two defendants clearly
sets forth forfeiture allegations, naming “$280,000 in United
States currency” subject to forfeiture pursuant to Title 21,
United States Code, Section 853. That $280,000 figure
included “more specifically funds in the amounts
of $4239.00, $4273.00 and $269,005.00,” as page one of the
June 16, 2004 Motion of the United States for Entry of
Preliminary Order of Forfeiture—filed on the heels of the
defendants’ February 4, 2004 conviction—reveals. Nor is
there any doubt that those assets were in fact ultimately
forfeited, as the district court entered preliminary orders
toward that end against both Dawson (Minute Order,
August 25, 2004) and Ingram (Minute Order, June 6, 2004).
While it may be unclear whether Diaz takes his 20% pro-
ceeds in cash or cashier’s check, we may say with sufficient
certainty that the conviction of Dawson and Ingram will get
Diaz paid.
(...continued)
Q: How much money was seized in the first case?
Diaz: 269,000
Q: Is that this case that you are talking about, the money for
which you are testifying now?
Diaz: Yes.
14 Nos. 04-2557, 04-2592
As the majority acknowledges, there is a rule against
paying witnesses an additional fee, if the party for whom
they testify wins the case. See Maj. Op. at 5. The majority,
however, would limit this rule to one of professional
conduct rather than extend it to admissibility of evidence,
see Tagatz v. Marquette Univ., 861 F.2d 1040, 1042 (7th Cir.
1988), predicting the threat of the“windfalls” that would
surely come on the heels of an exclusionary rule. I do not
discount the value inherent in avoiding windfalls, but to
appreciate that value is not to say that other values do not
here exist. Indeed, they do, and they are nothing less than
due process and fairness to defendants.
These values too are important. In United States v. Estrada,
256 F.3d 466 (7th Cir. 2001), we expressed reservations
about a fee arrangement with a witness that, like here, was
dependent on the defendant’s conviction. “Such an incen-
tive structure,” we said, “does little to enhance overall
confidence in the criminal justice system.” Id. at 472. Only
because there was “overwhelming evidence” of the defen-
dant’s drug involvement did we conclude that the defen-
dant’s sentence did “not carry with it the specter of a
miscarriage of justice.” Id. Here, though, as the majority
recognizes, the government’s case could not have sur-
vived without Diaz’s testimony.
Other circuits have also expressed reservations about this
practice although, unfortunately, often in opinions that have
long since been ignored if not abrogated or outright over-
ruled. See, e.g., United States v. Waterman, 732 F.2d 1527, 1528
(8th Cir. 1984) (holding that a witness agreement contingent
upon the outcome of the case “hampered the truth-finding
function of the jury to a degree which cannot be reconciled
with the fair procedures guaranteed by the due process
clause of the fifth amendment”), vacated en banc, id. at 1533;
Nos. 04-2557, 04-2592 15
Williamson v. United States, 311 F.2d 441, 444 (8th Cir. 1962)
(rejecting testimony elicited through an outcome-dependent
agreement in keeping with “the duty of the courts in federal
criminal cases to require fair and lawful conduct from
federal agents in the furnishing of evidence of crimes”),
overruled by United States v. Cervantes-Pacheco, 826 F.2d 310,
316 (5th Cir. 1987).
Yet the specter of these values persists nonetheless. As our
sister circuit noted in United States v. Dailey, 759 F.2d 192,
201 n.9 (1st Cir. 1985), “benefits made contingent upon
subsequent indictments or convictions skate very close to, if
indeed they do not cross, the limits imposed by the due
process clause.” As the Dailey court stated, it could “think of
no instance in which the government would be justified in
making a promised benefit contingent upon the return of an
indictment or a guilty verdict.” Id. at 201. And I certainly
acknowledge that this circuit has expressly rejected the
doctrine of “outrageous government conduct” first posited
by the Court in United States v. Russell, 411 U.S. 423, 431-32
3
(1973). See United States v. Boyd, 55 F.3d 239, 241 (7th Cir.
1995) (holding that “the doctrine [of outrageous government
conduct] does not exist in this circuit”). However, should
the government continue to utilize these agreements, I am
confident that another opportunity to revisit that doctrine
will not be long off.
I should be comforted, according to my colleagues, by
the merits of vigorous cross-examination and jury com-
3
In Russell, the Supreme Court suggested that there may be “a
situation in which the conduct of law enforcement agents is so
outrageous that due process principles would absolutely bar the
government from invoking judicial processes to obtain a con-
viction.” Id.
16 Nos. 04-2557, 04-2592
petency in ferreting out “testimony given under a powerful
inducement to lie.” I find greater comfort, however, in the
text of the since vacated Waterman decision. That panel
rejected such reliance on the jury’s role in making credibility
determinations: “[W]e see no place in due process law for
positioning the jury to weed out the seeds of untruth
planted by the government. Certainly [the witness] might
have lied regardless of the contingency agreement and the
jury was generally commissioned to determine the truth of
his testimony; but that is no reason for the government to
give him further incentive to selectively remember past
events in a manner favorable to the indictment or conviction
of others.” Waterman, 732 F.2d at 1532. Indeed, the impact
on “the truth-finding function of the jury” is what led the
panel to find such arrangements in contravention of due
process in the first place. Id. at 1528.
While the precedent both within and without this cir-
cuit suggests that I might swim against the tide, there
are nonetheless sub-currents of which the government
should take note before again brokering these bargains. See,
e.g., Estrada, 256 F.3d at 472; United States v. Innamorati, 996
F.2d 456, 482 (1st Cir. 1993) (upholding admissibility of
testimony where payment to the witness “was completed
several days prior to trial, and the payment was thus
not directly dependent upon the result of [the witness’s]
testimony in court”); Dailey, 759 F.2d at 201. The govern-
ment might also consider the canons of professional con-
duct, which forbid the practice of predicating witness
payment on case outcomes. See Maj. Op. at 5 (“Even an
expert witness, and a fortiori an occurrence witness, may not
be paid more if the party for whom he is testifying wins the
case.”); Cervantes-Pacheco, 826 F.2d at 316 (Rubin, J., concur-
ring) (noting that “employment of a witness for a fee con-
tingent upon victory for the party in whose favor he testifies
Nos. 04-2557, 04-2592 17
is a violation of both the Model Rules of Professional
Conduct [Rule 3.4] and the Code of Professional Responsi-
bility [DR 7-109]”); Model Code of Professional Responsibil-
ity DR 7-109(C) (1980) (“A lawyer shall not pay, offer to pay,
or acquiesce in the payment of compensation to a witness
contingent upon the content of his testimony or the outcome
of the case.”).
I recognize that witnesses can receive immunity or
reduced sentences in exchange for their truthful testimony,
see, e.g., United States v. Blassingame, 197 F.3d 271, 285 (7th
Cir. 1999), and I have no quarrel with that practice. It is
one thing to accept the myriad and sometimes sordid
realities that motivate witnesses to testify; but it is another
affirmatively to invite inherently tainted testimony. The
danger of these outcome-contingent agreements is real;
“[t]he opportunities for abuse . . . too obvious to require
elaboration.” Williamson, 311 F.2d at 444. Nor is this a matter
of quibbling over the exact percentage that the government
may pay to secure supporting testimony, for that, as my
colleagues rightly note, is not within the province of the
judicial department. What is a matter of judicial concern,
however, is a defendant’s right to a fair trial, and it is that
concern that renders any percentage of moneys paid to a
witness improper when such payment depends upon the
conviction of another.
For these reasons, I respectfully dissent.
18 Nos. 04-2557, 04-2592
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-28-05