United States v. Dawson, Pierre

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