holding, without examining § 201(c)(2), that a “contingency fee arrangement is not per se impermissible,” and relying on the safeguards of cross-examination and jury instruction to “ferret out-any false testimony”
How later courts described this case
- holding, without examining § 201(c)(2), that a “contingency fee arrangement is not per se impermissible,” and relying on the safeguards of cross-examination and jury instruction to “ferret out-any false testimony”
- recognizing that there is no federal requirement of corroboration of an informant's testimony -11- provided the testimony is not "incredible or insubstantial on its face" (internal quotations omitted)
- recognizing that there is no federal requirement of corroboration of an informant’s testimony provided the testimony is not “incredible or insubstantial on its face” (internal quotations omitted)
- concluding that "[t]he evidence against the two defendants was very strong if the jury believed [the lengthy testimony of the witness who made the improper remark]"
Written by the judges who cited it.
The opinion
ALDRICH, Senior Circuit Judge
(concurring).
While I concur in the result, and in most of the opinion, I regret to say that in one area the court fails to reflect what we said in our recent decision in United States v. Dailey, 759 F.2d 192 (1st Cir.1985), and says things that impermissibly (I do not understand that a panel can, simpliciter, overrule a prior decision) step back from it. Passing the lengthy quotation from United States v. Grimes, 438 F.2d 391 (6th Cir.1971), ce rt. denied, 402 U.S. 989 , 91 S.Ct. 1684 , 29 L.Ed.2d 155 , which, I respectfully suggest, adds little to the opinion, as we have never committed ourselves to adopting the Sixth Circuit’s position, I object to the court’s reasoning. Shortly after the quotation from Grimes the court says,
[T]he agents who supervised Montaner made clear that the important factor in determining what he received was nothing more specific than the nature and extent of his cooperation.
This is what they may have made clear .in court; they did not make it clear to Mon-taner. Rather, the court merely reasons that success had not been a condition on a prior occasion.
There was no reason then, for Montaner to believe his payment in this case would be contingent upon a conviction. Mon-taner’s isolated statement was not the product of a government promise, [footnote omitted.]
This is to disregard our wise pronouncements in Dailey . In addition to saying “we can think of no instance in which the government would be justified in making a promised benefit contingent upon ... a guilty verdict,” we there stated, “It is the government’s duty ... to insure that all parties have a clear understanding of what each contingency provision means and what it does not mean.” 759 F.2d at 201 . It is only too apparent that the government failed to do this here. Thus, even if Mon-taner had not been promised, but nevertheless believed, that his benefits were contingent on the defendants’ convictions, the government should bear the responsibility for the failure to make its arrangement clear.
I much regret that the court has watered this requirement down, both by its language and by its reasoning.
At the same time, though with reluctance, I accept the court’s ultimate conclusion, based on the further testimony, that .the record shows that Montaner did not really believe that a conviction would increase his receipts. On this basis I concur in the result. I trust, though, that in the future prosecutors will look carefully to Dailey’s requirement of explicitness, and not consider language in the present opinion as a modification thereof.