United States v. Michael Gandolfo Albanese , 195 F.3d 389 ( 1999 )

BOWMAN, Circuit Judge.

Michael Gandolfo Albanese was charged with conspiring to distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 841 (1994). Two prior proceedings having ended in mistrials, Albanese was convicted in a third proceeding and sentenced to 360 months of incarceration. He appeals, claiming that government misconduct caused the second proceeding to end in a mistrial and that the Double Jeopardy Clause therefore barred his subsequent reprosecution. Albanese also challenges the District Court’s admission of testimony from a witness compensated by the Government. We affirm.

I.

Albanese was convicted for conspiring with two other men, Nicholas LanFranca and Joseph Riley. In January 1997, Riley arranged to purchase five kilograms of cocaine from Joseph Bartels. Riley intended to rob and kill Bartels instead of paying for the cocaine.

On January 30, 1997, Riley met Bartels at a motel in Platte County, Missouri. While Albanese and LanFranca waited outside the motel in Riley’s car, Riley entered the motel room and shot Bartels, seriously wounding him. Bartels was a paid cooperating witness for the Federal Bureau of Investigation (FBI), and FBI agents were monitoring the purported drug transaction from an adjoining room. Agents rushed into the motel room and shot and killed Riley. Other FBI agents then arrested Albanese and LanFranca outside the motel.

Albanese and LanFranca were charged in federal court for their role in the conspiracy, and Albanese was charged in state court for Riley’s death. Because Lan-Franca was on supervised release at the time of his arrest, the Government also moved to have his release revoked. Bar-tels testified at LanFranca’s revocation hearing in March 1997 regarding Lan-Franca’s participation in the conspiracy, and the District Court² revoked LanFran-ca’s release. LanFranca then pleaded guilty to the federal drug-conspiracy charge and agreed to testify against Alba-nese.

Albanese’s federal criminal trial was scheduled on three separate occasions. The District Court discontinued the first proceeding in December 1997 after voir dire because pretrial publicity regarding Albanese’s state murder trial had tainted the venire.³ Albanese then went to trial a second time in February 1998. This trial reached jury deliberations, but the District Court declared a mistrial after the jury could not reach a unanimous verdict. Finally, Albanese went to trial a third time in March 1998. He was convicted and subsequently sentenced. Seeking reversal of his conviction, Albanese appeals.

II.

Normally the Double Jeopardy Clause allows a criminal defendant to be retried after a prior proceeding ends in a hung jury. See Richardson v. United States, 468 U.S. 317, 323-24, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); United States v. Perez, 22 U.S. (9 Wheat.) 579, 579-80, 6 L.Ed. 165 (1824). In Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), however, the Supreme Court recognized an exception to this rule where the Government engages in conduct intended to provoke a criminal defendant to move for a mistrial, and the defendant successfully moves for a mistrial based on this misconduct. See id. at 679, 102 S.Ct. 2083. Albanese claims that government misconduct regarding inconsistent testimony by Bartels, a paid government witness, caused the February 1998 trial to end in a mistrial, and therefore Kennedy bars his retrial and conviction.

Bartels gave inconsistent accounts of LanFranca’s role in the conspiracy at Lan-Franca’s revocation hearing in March 1997 and at Albanese’s conspiracy trial in February 1998. At LanFranca’s revocation hearing, Bartels testified that LanFranca’s participated actively in the conspiracy and knew of Riley’s desire to rob and kill a drug dealer. Specifically, Bartels testified that, during a March 1996 conversation regarding a proposed drug deal, LanFran-ca stood two feet away from Riley and Bartels and, although not speaking, appeared to back Riley up when Riley suggested robbing and killing a drug dealer. See Transcript of Proceedings (Partial) dated March 3, 1997, at 8, 14-15. At Albanese’s February 1998 trial, however, Bartels minimized LanFranca’s participation in the drug conspiracy, testifying that LanFranca was “present, but he was not close to [Bartels and Riley] and he was not involved in that specific conversation” when Riley suggested to Bartels that they should rob and kill a drug dealer. See Transcript of [the February 1998] Proceedings, Cross-Examination of Joseph Bartels at 25. According to Albanese, Bartels’ inconsistency helped the Government because Bartels’ March 1997 testimony would have contradicted, but the February 1998 testimony supported, Lan-Franca’s February 1998 testimony that Al-banese knew Riley wanted to rob and kill a drug dealer, while LanFranca himself was unaware of Riley’s plan. Cf. Partial Transcript of [the February 1998] Proceedings, Cross-Examination of Nicholas J. LanFranca at 16-20.

Albanese alleges the Government engaged in misconduct when it failed to disclose the inconsistencies in Bartels’ testimony. The same Assistant United States Attorney (AUSA) examined Bartels at LanFranca’s March 1997 revocation hearing and during Albanese’s February 1998 trial. When Bartels’ offered testimony in the February 1998 trial that was inconsistent with his previous testimony, however, the AUSA did not tell the District Court or defense counsel⁴ about Bartels’ previous testimony. Rather, one of the District Court’s law clerks who observed both proceedings told the judge that Bartels’ February 1998 testimony contradicted his earlier testimony. The District Court then alerted defense counsel, and — after the AUSA provided defense counsel with a transcript of Bartels’ testimony at the revocation hearing — permitted defense counsel to reopen his examination of Bartels and reveal the prior inconsistent testimony to the jury.

Bartels’ inconsistent testimony having been revealed, the case went to the jury, which failed to reach a unanimous verdict. Albanese’s argument, essentially, is that the hung jury and the resulting mistrial were caused by the inconsistencies in Bar-tels’ testimony that were shown to the jury. Albanese further argues that, because government misconduct produced the inconsistent testimony that caused the February 1998 proceeding to end in a mistrial, Kennedy bars Albanese’s subsequent reprosecution.

There are at least three major problems with Albanese’s argument. First, Alba-nese relies only on conjecture when he claims that the events surrounding the revelation of Bartels’ prior inconsistent testimony caused the hung jury. Albanese claims we should adopt his hypothesis because, he argues, the only explanation as to why the February 1998 jury would not convict Albanese, while the jury in the state murder trial and the March 1998 jury did convict him, was that only the February 1998 jury was privy to the Government’s failure to disclose Bartels’ prior inconsistent testimony. Many other factors, however, might explain why the February 1998 jury reached a different conclusion. We do not and as a practical matter cannot know why the February 1998 jury failed to reach a unanimous verdict. See United States v. Felix, 996 F.2d 203, 209 (8th Cir.1993) (stating that there is no way to know why a jury reaches a particular verdict). Therefore, we hesitate to speculate in the way Albanese urges.

Second, the circumstances in which Kennedy bars retrial are unlike the present case.. In Kennedy, the Court was concerned that a prosecutor, believing a case was not going well and fearing the jury might acquit the defendant, would engage in misconduct in the hope of provoking the defendant to move for a mistrial. The Court was reluctant to allow the prosecution to put the defendant in the position of having to choose either to refrain from moving for a mistrial, instead hoping any conviction gained by the misconduct would be overturned, or to move for a mistrial, thus giving the prosecutor another opportunity to try the case. See Kennedy, 456 U.S. at 673-76, 102 S.Ct. 2083. In this case, however, Albanese never faced this Hobson’s choice: Albanese faced reprose-cution only because the jury, for whatever reason, failed to reach a unanimous verdict in the February 1998 trial.

Third, and most importantly, the Government’s conduct in this case simply does not rise (or, more accurately, sink) to the level at which Kennedy would bar retrial. Several grounds support this conclusion. First, Kennedy forbids a retrial only if the government intentionally engaged in the conduct that caused the defendant to move for mistrial. See Jacob v. Clarke, 52 F.3d 178, 181 (8th Cir.1995) (stating that, under Kennedy, a defendant “must prove intentional prosecutorial misconduct”). Albanese does not accuse the Government of intentionally causing Bartels to change his testimony, nor does Albanese offer proof that the Government expected that Bartels would change his testimony. The District Court, in fact, stated it did not believe that the Government engaged in intentional misconduct. See Excerpts of Sentencing Transcript, Appellant’s Appendix at 84. This finding is not clearly erroneous.⁵

In addition, Albanese cannot point to any right the Government violated by failing to notify him that Bartels was testifying inconsistently. Bartels gave his prior testimony at a public proceeding, so the Government’s failure to turn over a transcript of Bartels’ prior testimony violated neither Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), nor the Jencks Act, 18 U.S.C. § 3500 (1994). See United States v. Jones, 160 F.3d 473, 479 (8th Cir.1998) (finding no Brady violation where the government failed to inform defense counsel of a plea agreement “because transcript of [the] plea agreement and sentencing hearing were readily available”); id. at 479 n. 5 (stating that matters of public record are “not within the scope of the Jencks Act”). Moreover, defense counsel had ample opportunity to learn about Bartels’ prior testimony. Defense counsel knew about LanFranca’s revocation hearing, having requested the testimony of other witnesses at the proceeding,⁶ and even deposed Bartels before Bartels testified at Albanese’s February 1998 trial.

Moreover, though Albanese correctly points out that a prosecutor may not knowingly, recklessly, or negligently introduce perjured testimony, see United States v. Duke, 50 F.3d 571, 577-78 (8th Cir.1995), Albanese has not shown that Bartels committed perjury. Bartels’ testimony was inconsistent, but these inconsistencies might have been due to the gunshot wound Riley inflicted and its treatment, as Bar-tels claimed, see Transcript of [the February 1998] Proceedings, Cross-Examination of Joseph Bartels at 50, or merely the passage of time. In either case, Bartels would lack the requisite mens rea for perjury. See United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993) (stating that a witness does not commit perjury if inconsistencies in testimony are not intentional but rather the “result of confusion, mistake, or faulty memory”). Albanese has shown nothing more than that a government witness testified inconsistently. This does not violate Duke.

Finally, whatever problems Bartels’ inconsistent testimony caused were effectively cured at trial. Albanese had adequate opportunity to expose the inconsistencies to the jury in both the second and third proceedings. The District Court permitted defense counsel to reopen his examination of Bartels during the February 1998 trial, and the Government questioned Bar-tels regarding his inconsistent testimony during its direct examination of him at the March 1998 trial. Albanese does not suggest that the belated revelation that Bar-tels was testifying inconsistently impeded his defense during the February 1998 trial. In fact, we agree with the District Court that the manner in which the inconsistency was revealed — allowing Albanese to reopen cross-examination of Bartels on this point — -probably highlighted Bartels’ inconsistent testimony and if anything aided Albanese’s defense. See Excerpts of Sentencing Transcript, Appellant’s Appendix at 84.

For these reasons, we hold that Alba-nese’s reprosecution subsequent to the February 1998 mistrial did not violate his rights under the Double Jeopardy Clause.

III.

We also reject Albanese’s argument that the District Court erred when it failed to exclude Bartels’ testimony because Bartels received compensation. The Government admits that Bartels received leniency on criminal charges he faced and payments in excess of $60,000 for his cooperation in investigating and prosecuting this conspiracy and other criminal activities. Albanese claims that 18 U.S.C. § 201(c)(2) (1994)⁷ forbids such compensation. Albanese makes the argument, briefly accepted by the Tenth Circuit in United States v. Singleton, 144 F.3d 1343 (10th Cir.1998), opinion vacated and rehearing granted, 144 F.3d 1361 (10th Cir. July 10, 1999) (en banc), on rehearing, 165 F.3d 1297 (10th Cir.) (en banc), cert. denied, — U.S. -, 119 S.Ct. 2371, 144 L.Ed.2d 775 (1999), that the Government violated § 201(c)(2) and that this violation requires the exclusion of Bartels’ testimony.

This Court has consistently rejected the argument that the government violates § 201(c)(2) when it grants a prosecution witness leniency for testifying. See United States v. Johnson, 169 F.3d 1092, 1097-98 (8th Cir.1999); United States v. Boyd, 168 F.3d 1077, 1078 (8th Cir.1999). We also have a long history of allowing the government to compensate witnesses for their participation in criminal investigations. See, e.g., United States v. Einfeldt, 138 F.3d 373, 377 (8th Cir.1998) (affirming a conviction although defense counsel did not learn the government compensated a prosecution witness until trial); United States v. Gordon, 974 F.2d 97, 99-100 (8th Cir.1992) (finding the evidence was sufficient to uphold the appellant’s conviction, even though the primary prosecution witness had received $77,000 through the witness protection program plus $30,000 as a percentage of the illegal funds that he helped the government recover); United States v. Risken, 788 F.2d 1361, 1373 (8th Cir.) (upholding a conviction obtained through testimony of a paid government witness although the fact that the witness would receive greater compensation if the defendant were convicted was not disclosed to the jury), cert. denied, 479 U.S. 923, 107 S.Ct. 329, 93 L.Ed.2d 302 (1986); United States v. Quinn, 543 F.2d 640, 651 (8th Cir.1976) (stating that ordinarily a defendant is entitled to cross-examine a paid informant regarding his or her relationship and agreement with the government, but not suggesting such payments are inappropriate).

Furthermore, just as certain federal statutes indicate prosecutors may — in apparent contradiction to § 201(c)(2) — grant witnesses leniency for testifying, see, e.g. 18 U.S.C. § 3553(e) (1994) (allowing a court, on the government’s motion, to impose a sentence below a statutory minimum “to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense”); 28 U.S.C. § 994(n) (1994) (requiring the Sentencing Guideline Commission “to take into account a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense”); see also Johnson, 169 F.3d at 1098; United States v. Ramsey, 165 F.3d 980, 990 (D.C.Cir.1999), other statutes authorize the federal government to pay witnesses, see, e.g., 18 U.S.C. § 3521(b) (1994) (allowing the government to provide services, including payments to meet living expenses, to individuals who testify for the federal or state governments in criminal trials).

The fact that the Government granted Bartels leniency and paid him for his assistance was known to the jury and was fully explored at trial before the jury convicted Albanese. We conclude that § 201(c)(2) provides no basis for reversing this conviction.

IV.

For the reasons stated above, Albanese’s conviction is affirmed.

2 . The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri, presided over the revocation hearing and all other federal proceedings relevant to this appeal.

3 . Jeopardy did not attach in the first proceeding, because the jury had not yet been sworn. See United States v. Givens, 88 F.3d 608, 611 (8th Cir.1996).

4 . Albanese’s appellate counsel did not represent Albanese during the February 1998 or March 1998 proceedings before the District Court.

5 . The fact that Bartels was paid for cooperating in this and other federal criminal investigations, a point discussed in greater detail infra in Part III, adds little to this analysis. Albanese does not suggest that the Government compensated Bartels so that he would testify inconsistently, or that Bartels’ compensation depended upon the content of his testimony or the outcome of the trial. Cf. United States v. Risken, 788 F.2d 1361, 1373-74 (8th Cir.) (affirming a conviction although a prosecution witness was compensated and the amount of compensation varied according to the outcome of the trial), cert. denied, 479 U.S. 923, 107 S.Ct. 329, 93 L.Ed.2d 302 (1986).

6 . When Albanese's attorney asked an FBI agent to name the witnesses who testified at LanFranca’s revocation hearing, the agent apparently failed to mention that Bartels had testified. This omission alone, however, does not prove that the Government acted improperly. Albanese has made no attempt to show that the FBI agent’s omission was anything more than inadvertent.

7 . Section 201(c)(2) states that anyone who,

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, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or for or because of such person’s absence therefrom

shall be imprisoned or fined for such conduct. See 18 U.S.C. § 201(c)(2).