                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-13-2000

United States v. Harris
Precedential or Non-Precedential:

Docket 99-1026




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Recommended Citation
"United States v. Harris" (2000). 2000 Decisions. Paper 79.
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Filed 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   Judges

(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 Appellee
OPINION OF THE COURT

COWEN, Circuit Judge.

In this appeal Vincent Harris contends that when the
government paid several confidential informants to gather
information and later had those informants testify at
Harris's criminal trial, the government violated the 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 reject
Harris's argument and will affirm the District Court.

I

The significance of the paid informants' testimony was to
identify whether Harris, who admitted having once been a
drug dealer, had withdrawn from his illegal activities by
February 18, 1993, the first date the prosecution could 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 previously
engaged in drug trafficking, also received a sentence
reduction of approximately eight years. A second witness,
Jerome Lewis, received $20 a number of months before the
trial for acting as a confidential informant, and had his
sentence reduced from approximately fifteen years to five
years. His testimony, however, was less helpful, as it placed
Harris's most recent drug activity around 1992 to 1993. A
third witness for the government, Ron Baxter, had his car
seized and later returned by state authorities in the course

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of the state's prosecution of him, but there is no evidence
in the record that the decision to return the car was
influenced by federal officials. Harris also argues that the
federal government never indicted Baxter, his girlfriend, 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 witnesses
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 do not
violate the antigratuity statute. United States v. Hunte, 193
F.3d 173 (3d Cir. 1999), cert. denied, 120 S.Ct. 962 (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 case, is
also not prohibited by the statute. See, e.g. , United 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. United States,
406 U.S. 441, 92 S.Ct. 1653 (1972) (reviewing lengthy
history of grants of immunity to witnesses). The central
question raised in this appeal is whether the government
violates the statute when it pays an informant before trial
to collect information and does so when there is some
expectation that the informant may later testify about 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 participation in
a sting operation by receiving a percentage of the assets
forfeited by the defendant. Cf. Hoffa v. United States, 385
U.S. 293, 87 S.Ct. 408 (1966) (no due process violation for
using testimony of an informer who received some
compensation). Under the agreement at issue in Gonzales,

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the amount of the informant's reward depended on the
degree of his cooperation, but the defendants did not 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 of " the
case. Id. at 144. In finding no due process violation, we
concluded that "[t]he method of payment is properly a
matter for the jury to consider in weighing the credibility 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 violation,
however, does not resolve whether legislation like the
antigratuity statute prohibits the government from using
the testimony. No such statutory issue was before the court
in Gonzales. But regardless of the reach of Gonzales, 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 the
government's use of a paid informant's testimony does not
violate the antigratuity statute. See United States v. Anty,
203 F.3d 305 (4th Cir. 2000); United States v. Barnett, 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 can pay
informants to gather information and can have those
informants testify at trial. In reaching this conclusion we
stress, as the Fourth Circuit did, that "a defendant'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 general
term like "whoever," as it appears in the antigratuity
statute, excludes the United States when a contrary reading
"would deprive the sovereign of a recognized or established
prerogative" or would "work obvious absurdity." Nardone v.

                               4
United States, 302 U.S. 379, 383-84, 58 S.Ct. 275 (1937).
As the Fourth Circuit detailed, a broad array of statutes
permit the government to pay witnesses for fees and
expenses, including those incurred as part of the witness
protection program. Anty, 203 F.3d at 309 (citing 28 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) (nominal
witness attendance fee); Fed.R.Crim.P. 17(d) (same)). And
the antigratuity statute itself allows the government to pay
"witness fees provided by law." See 18 U.S.C. S 201(d).

Harris could argue that since these statutes are limited
to expenses a witness incurs in testifying on the
government's behalf, they appear to offer insufficient
support for any greater compensation for gathering
evidence and testifying. But other statutes address more
directly the circumstance raised in our case--payments 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) (payments to
individuals for drug enforcement); 26 U.S.C. S 7623
(payments to detect and prosecute tax offenders); 19 U.S.C.
S 1619 (payments for information in customs enforcement);
18 U.S.C. S 3059B (rewards for assisting the Department of
Justice); 18 U.S.C. S 3059A(a)(1) (payments for information
in prosecution of offenses against financial institutions); 18
U.S.C. S 3059(b) (rewards for information in apprehending
certain fugitives); 18 U.S.C. S 1751(g) (payments for
"information and services" about assassination, assault, or
kidnapping of the President); 18 U.S.C. S 3056(c)(1)(D)
(payments for assisting the Secret Service). As Anty
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 criminal
statutes, Congress surely must have contemplated
payments to informants for assisting both in investigations
and by testifying." 203 F.3d at 309. Adopting the rule urged
by Harris also would seem to have the surprising

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implication that police officers may not testify at trials, as
the government pays the officers a salary to collect
information and testify at trial about that information when
necessary.

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

The government insists that we have effectively decided
that it can make payments solely for favorable testimony
because in Hunte we defined the term "whoever" in the
antigratuity statute as not including the government. We
disagree with the government that Hunte resolves the issue.
In Hunte we merely held that "whoever" does not
encompass the government when it is acting within some
well-established authority--in that case the government's
power to use leniency or plea agreements in exchange for
truthful testimony. Our reasoning in this case parallels that
logic.

We find no merit in the other arguments Harris raises.
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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