Opposition Brief — Impemba v. United States

supreme Court, U.S,

FN FILED

ov ) MAY 16 1988

ae

No. 87-969 |

JOSEPH F. SPANIOL, JR,

=RK

In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

GUIDO IMPEMBA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS.

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

ROBERT. J. ERICKSON

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

:

QUESTION PRESENTED

Whether petitioner’s due process rights were violated by

the admission of the testimony of an informant who was

promised a fee contingent on the government’s evaluation

of his overall performance at the conclusion of the case.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Benson v. United States, 146 U.S. 325 (1892) ........... 6

Hoffa v. United States, 385 U.S. 293 (1966) ............ 6

Lisenba v. California, 314 U.S. 219 (1941) ............. 6

United States v. Cervantes-Pacheco, 826 F.2d 310 (Sth

Cir. 1987), cert. denied, No. 87-656 (Jan. 19, 1988) .... 7,8

United States v. Crim, 340 F.2d 989 (4th Cir. 1965) ...... 7

United States v. Curtis, 520 F.2d 1300 (1st Cir. 1975) .... 7

United States v. Dailey, 759 F.2d 192 (Ist Cir. 1985) ..... 3

6, 9, 10

United States v. D’Antignac, 628 F.2d 428 (Sth Cir.

1980), cert. denied, 450 U.S. 967 (1981) .............. 6-7

United States v. Grimes, 438 F.2d 391 (6th Cir.), cert.

EL a | 7

United States v. Hodge, 594 F.2d 1163 (7th Cir. 1979) ... 7

United States v. Insana, 423 F.2d 1165 (2d Cir.), cert.

OE CUO ovine cdcédaeraccedcssses 7

United States v. Jones, 575 F.2d 81 (6th Cir. 1978) ...... 7

United States v. Librach, 536 F.2d 1228 (8th Cir.), cert.

I OR, PO ong cv nc cease wb bsawssees 7

United States v. Mills, 597 F.2d 693 (9th Cir. 1979) ...... 7

United States v. Murphy, 41 U.S. (16 Pet.) 203 (1842) .... 6

United States v. Reynoso-Ulloa, 548 F.2d 1329 (9th Cir.

1977), cert. denied, 436 U.S. 926(1978).............. 7

United States v. Spector, 793 F.2d 932 (8th Cir. 1986),

cert. denied, No. 86-621 (Jan. 12, 1987) ............. ,

United States v. Spivey, 448 F.2d 390 (4th Cir. 1971),

ee RE os 7

United States v. Valona, 834 F.2d 1334 (7th Cir. 1987)... 7

(111)

IV

Cases — Continued

United States v. Walker, 720 F.2d 1527 (11th Cir. 1983),

cert. denied, 465 U.S. 1108 (1984) ...............-5.

United States v. Waterman, 732 F.2d 1527 (8th Cir.

1984), cert. denied, 471 U.S. 1065 (1985) ...........--

Wisniewski v. United States, 353 U.S. 901 (1957) ........

Constitution and statutes:

U.S. Const.:

Amend. V (Due Process Clause) ...............--:

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Page

Jn the Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-969

GUIDO IMPEMBA, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-41a)

is reported at 825 F.2d 538.

JURISDICTION

The judgment of the court of appeals was entered on

July 23, 1987. A petition for rehearing was denied on Sep-

tember 18, 1987 (Pet. App. 42a). The petition for a writ of

certiorari was not filed until December 12, 1987, and is

therefore substantially out of time under Rule 20.1 of the

Rules of this Court. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District Court for

the District of Maine, petitioner was convicted of con-

(1)

2

spiracy to possess marijuana with intent to distribute it

(Count 1) and conspiracy to import more than 1,000

pounds of marijuana (Count 2), in violation of 21 U.S.C.

846 and 963. He was given concurrent sentences of 15

years’ imprisonment and a $50,000 fine on Count 1, and

five years’ imprisonment and a $15,000 fine on Count 2.

The court of appeals affirmed (Pet. App. la-4la).

1. The evidence, the sufficiency of which is not

challenged, was summarized by the court of appeals (Pet.

App. 4a-1 1a). In 1982, informant Jose Montaner delivered

money from co-defendant Ernesto Agudelo to a Colom-

bian boat captain and brokered Agudelo’s purchase of an

ocean-going vessel to be used for drug smuggling. Agudelo

subsequently included Montaner in a plan to smuggle ap-

proximately 62,000 pounds of marijuana on board the

freighter ADINA from Colombia to the northeast coast of

the United States. After making the necessary arrange-

ments in Colombia and Panama, Montaner and Agudelo

returned separately to the United States, met in Florida,

and traveled together to Boston. They took with them a

portable radio to be used to communicate with their mari-

juana suppliers in Colombia. Pet. App. 4a-Sa.

Montaner and Agudelo then went to petitioner’s rented

house near Laconia, New Hampshire. At that location,

Agudelo, Montaner, petitioner, and others made plans for

the arrival a».! offloading of the ADINA. At one point,

petitioner and others met with the persons who had been

chosen to offload the vessel. Petitioner gave Agudelo be-

tween $5,000 and $10,000 in cash at that time and taught

Agudelo how to make long distance telephone calls that

could not be traced. According to Agudelo, petitioner

represented the persons who would be buying the mari-

juana shipment. Pet. App. Sa-6a.

in late November 1983, Agudelo learned from his Col-

ombian supplier that the arrival of the ADINA was immi-

3

nent. According to the plan, a smaller vessel was to meet

the ADINA 200 to 300 miles from the coast and bring the

marijuana ashore in Maine. Agudelo told Montaner that

code names and special radio frequencies had been as-

signed to the various vessels and personnel; Montaner

relayed this information to government agents, who began

to monitor the group’s radio transmissions. Pet. App.

6a-7a.

The ADINA’s arrival was delayed because of bad

weather. On December 6, 1983, the Coast Guard began

tracking the ADINA in the Gulf of Maine. Two days later,

a Maine fisherman reported to federal agents that he had

been asked to provide a fishing vessel to offload mari-

juana from a freighter located at coordinates in the Gulf

of Maine where the agents knew the ADINA to be. Pet.

App. 7a, 9a-10a.

On December 9, the Coast Guard boarded the ADINA

and discovered a large quantity of marijuana hidden in the

ship’s cargo holds. At the captain’s request, the Coast

Guard personnel left the ADINA until permission -was

received from the government of Panama to seize the ship,

which was registered in Panama. In the meantime, the

Coast Guard jammed the freighter’s radio transmissions to

prevent persons on the ship from contacting their cohorts

on shore. Federal agents thereafter manned a decoy

fishing boat that proceeded to the designated rendezvous

site on the Maine coast. Petitioner and other conspirators

were arrested at a hotel near the offloading site, and

numerous weapons were seized. Pet. App. 10a-I 1a.

2. Prior to trial, it was disclosed that Montaner had

received payments in connection with his investigative

work in this case (see Pet. App. 12a, 17a-18a). As was

revealed in the discovery materials that were provided to

the defense, Montaner received approximately $17,000 in

payments prior to trial for mformation he provided with

respect to this case. In addition, he received $36,000 under

the Witness Protection Program in the form of subsistence

4

and relocation expenses. Montaner also expected to

receive a payment of up to $50,000 from the sale of the

ADINA, which had been forfeited as a result of informa-

tion provided by Montaner.' Finally, the discovery

materials revealed that Montaner had previously received

$30,000 for his cooperation in an unrelated case.

Although there was no written agreement memorializing

the arrangement between Montaner and the government,

the contents of the oral arrangement with Montaner were

explored in detail at trial. As the agents testified, the

amount that Montaner would receive as compensation was

primarily dependent upon the nature and extent of his

cooperation in the investigation (Pet. App. 17a). Mon-

taner likewise testified, for the most part, that his compen-

sation was not dependent on the outcome of the case (see

id. at 37a-39a). At one point during cross-examination,

however, Montaner stated that that he would expect more

generous treatment if the case resulted in convictions (id.

at 17a-18a).

3. The court of appeals rejected petitioner’s claim that

Montaner’s cooperation arrangement with the government

violated petitioner’s Fifth and Sixth Amendment rights.

As the court noted, “[a] contingent fee agreement is not

per se impermissible,” so long as “established safeguards”

are followed to ensure the veracity of the witness (Pet.

App. 13a). In this case, the court found (id. at 15a (foot-

note omitted)):

The extent of the corroboration of Montaner’s

testimony, plus the fact that the jury was fully in-

formed of the nature of the agreement, the thorough

cross-examination about the agreement, and the spe-

' Under customs law, informants may be paid a “moiety” of 25% of

the proceeds realized from the sale of forfeited items, up to a max-

imum of $50,000 (Pet. App. 12a n.3).

5

cific instructions admonishing the jury to weigh the

accomplice’s testimony with care, are sufficient

safeguards to outweigh the risk of inducing perjury

that is present in any contingency fee agreement and

ensure that the defendants were not denied their right

to a fair trial.

The court of appeals did not find it necessary to con-

sider whether a different rule should apply if an infor-

mant’s compensation were contingent upon the outcome

of a case since, in the court’s view, no such contingency

was present in this case (Pet. App. 17a). Despite Mon-

taner’s “isolated statement on cross-examination that he

expected more generous treatment from the government if

the defendants were convicted,” the court noted that (1)

the agents’ consistent testimony and the thrust of Mon-

taner’s testimony considered in its entirety showed that no

such contingency existed; (2) “Montaner received the bulk

of his compensation prior to trial”; and (3) Montaner had

been rewarded in a previous investigation even though

there had not been any arrests or convictions (id. at

17a-18a). The court therefore concluded that there was

“no reason * * * for Montaner to believe his payment in

this case would be contingent upon a conviction, nor was

it” (id. at 17a (emphasis in original)).

Judges Aldrich and Wisdom concurred in the result.

They noted that the court of appeals, in United States v.

Dailey, 759 F.2d 192 (ist Cir. 1985), had questioned

whether the government would ever be justified in promis-

ing a benefit contingent upon a conviction in a particular

case and that Dailey imposed upon the government the

duty of ensuring that both parties understood the exact

terms of the contingent agreement (Pet. App. 40a). As

Judge Aldrich noted, however, the concerns expressed by

the court in Dailey were satisfied in this case, because “the

6

record shows that Montaner did not really believe that a

_ conviction would increase his receipts” (id. at 41a).

ARGUMENT

Petitioner does not allege that Montaner’s testimony

was false or that he was denied his right to cross-examine

Montaner and the agents fully concerning the terms of the

contingent fee arrangement. Rather, petitioner contends

(Pet. 4-7) that Montaner’s testimony should have been ex-

cluded because of Montaner’s arrangement with the

government. He argues that the decision of the court of

appeals is in conflict with that court’s own prior ruling in

United States v. Dailey, supra, in that the instant arrange-

ment was not reduced to writing to ensure that the pay-

ment of fees was not contingent upon the conviction of

any defendant. The question whether there is an intra-

circuit conflict between the decision below and the deci-

sion in Dailey, however, is not one that warrants review by

this Court. See Wisniewski v. United States, 353 U.S. 901

(1957).

In any event, both this Court and the courts of appeals

have uniformly agreed that testimony obtained in ex-

change for a promise of favorable treatment is admissible;

as this Court has explained, “[t]he established safeguards

of the Anglo-American legal system leave the veracity of a

witness to be tested by cross-examination, and the

credibility of his testimony to be determined by a properly

instructed jury.” Hoffa v. United States, 385 U.S. 293, 311

(1966); see also Lisenba v. California, 314 U.S. 219, 227

(1941); Benson v. United States, 146 U.S. 325, 334-337

(1892); United States v. Murphy, 41 U.S. (16 Pet.) 203

(1842) (owner of stolen goods was a competent witness

despite his eligibility to receive a portion of the fine on

conviction); United States v. D’Antignac, 628 F.2d 428,

435-436 (Sth Cir. 1980), cert. denied, 450 U.S. 967 (1981);

7

United States v. Mills, 597 F.2d 693, 697 (9th Cir. 1979);

United States v. Librach, 536 F.2d 1228, 1230 (8th Cir.),

cert. denied, 429 U.S. 939 (1976); United States v. Curtis,

520 F.2d 1300, 1304 (Ist Cir. 1975); United States v.

Spivey, 448 F.2d 390, 391 (4th Cir. 1971), cert. denied, 405

U.S. 927 (1972); United States v. Insana, 423 F.2d 1165,

1168-1169 (2d Cir.), cert. denied, 400 U.S. 841 (1970).

In addition, the courts of appeals have uniformly held

admissible the testimony of informant-witnesses who have

received fees contingent on the value of their services.

Although such fee arrangements may create an incentive

to lie, the courts have recognized that “there are strong

public policy justifications for permitting law enforcement

officials to offer additional incentives to encourage

citizens to come forward with knowledge of crimes.”

United States v. Walker, 720 F.2d 1527, 1540 (11th Cir.

1983), cert. denied, 465 U.S. 1108 (1984). Rather than ex-

cluding such testimony on a per se basis, the courts have

found it preferable to “leave the entire matter to the jury

to consider in weighing the credibility of the witness-

informant.” United States v. Grimes, 438 F.2d 391, 396

(6th Cir.), cert. denied, 402 U.S. 989 (1971); accord

United States v. Valona, 834 F.2d 1334, 1343-1344 (7th

Cir. 1987); United States v. Cervantes-Pacheco, 826 F.2d

310, 313-316 (Sth Cir. 1987) (en banc), cert. denied, No.

87-656 (Jan. 19, 1988); United States v. Spector, 793 F.2d

932, 937 n.3 (8th Cir. 1986), cert. denied, No. 86-621 (Jan.

12, 1987); United States v. Hodge, 594 F.2d 1163, 1167

(7th Cir. 1979); United States v. Jones, 575 F.2d 81, 85-86

(6th Cir. 1978); United States v. Reynoso-Ulloa, 548 F.2d

1329, 1338 & n.19 (9th Cir. 1977), cert. denied, 436 U.S.

926 (1978); United States v. Crim, 340 F.2d 989 (4th Cir.

1965); see also United States v. Waterman, 732 F.2d 1527,

1533 (8th Cir. 1984) (en banc), cert. denied, 471 U.S. 1065

(1985).

The recent disposition of a similar claim by the en banc

Fifth Circuit is instructive. In United States v. Cervantes-

Pacheco, supra, an informant who periodically provided

assistance in federal investigations received a substantial

cash payment at the conclusion of the case based on an

evaluation of his overall performance. Rejecting any “per

se exclusionary rule,” the court of appeals there held that

“the credibility of the compensated witness * * * is for a

properly instructed jury to determine” (826 F.2d at 316).

Although the court recognized that such a contingent fee

arrangement may well provide the compensated witness

with a motivation to fabricate, “[a] witness * * * who is

paid a fee for his services has less of an inducement to lie

than witnesses who testify with promises of reduced

sentences” (id. at 315). Moreover, the risk of fabrication is

further reduced by the already “[a]dequate rules * * * in

place to protect against abuses” in the form of discovery

requirements, cross-examination, and cautionary jury in-

structions (/d. at 315-316). Because of these substantial

safeguards, the court in Cervantes-Pacheco correctly

recognized that the kind of per se rule of exclusion urged

by petitioner here has been “rejected * * * either expressly

or in principle” both by this Court and by every other cir-

cuit that has considered the issue (/d. at 313-314 & n.1 (col-

lecting cases); id. at 316 (Rubin, J., concurring)).

There are no reasons for a different result here. As the

court below stated, the substantial safeguards against per-

jured testimony that were relied upon in Cervantes-

Pacheco “were adhered to in the instant case” (Pet. App.

I4a). As the court of appeals noted (ibid. (footnote and

citation omitted)):

The full nature of rewards to Montaner was presented

to the jury in the government’s direct case, and was

also explored extensively on cross-examination. Prior

to trial, the government provided defense counsel

9

with a written memorandum detailing all payments

and benefits to Montaner. In the final instructions,

the trial court gave the jury the appropriate standard

against which to weigh the credibility of Montaner’s

testimony. * * * The jury was given the accomplice

instruction on three occasions and was told to focus

particularly on motives Montaner might have to lie,

such as promises or benefits.

Moreover, as the court below further recognized, “the

evidence here fully satisfies any suggested safeguard of

corroboration” since the agents who “followed Montaner

throughout his investigation * * * confirmed minute

details of his testimony” and since “[o]ther accomplices

who never met Montaner[] gave accounts of this con-

spiracy * * * that confirmed Montaner’s testimony” (Pet.

App. 15a). In such circumstances, the Due Process Clause

was in no way offended by the admission of the testimony

of a compensated witness.

Nor is there merit to petitioner’s claim (Pet. 6) that this

Court’s intervention is required because the instant deci-

sion is “likely to generate further confusion among the

other circuits” and is “directly at odds” with the First Cir-

cuit’s own prior decision in United States v. Dailey, supra.

As we have noted, the courts of appeals that have con-

sidered the issue are uniformly in agreement with the deci-

sion in this case. And, even apart from the inappro-

priateness of review by this Court to resolve an intra-

circuit conflict, any difference between the decision below

and the same court’s decision in Datley reflects only a mat-

ter of emphasis.

For example, petitioner complains that the court below,

unlike its counterpart in Dailey, endorsed fee ar-

rangements that are contingent upon the outcome of trial.

Although the court below agreed—as had the Dailey

10

court —as a matter of “general policy and reasoning” that

such arrangements might comport with the principles of

due process, the court did not resolve the case on that basis

since “[t}he government made no such promise here and

we would not condone such an agreement” (Pet. App.

17a). Thus, as a factual matter, the court of appeals deter-

mined that the arrangement in this case was not signifi-

cantly different from the arrangement in Dailey or the ar-

rangements in the great majority of cases in which fees are

paid based on an evaluation of an informant’s perform-

ance in an investigation.

Similarly insubstantial is petitioner’s claim that Mon-

taner’s testimony was subject to exclusion because the in-

formant’s arrangement with the government was not

reduced to writing. As the court of appeals correctly

noted, while a written agreement was suggested “as a

better safeguard” in Dailey, it “is not a per se requirement”

(Pet. App. 14a n.5). Here, Montaner and the agents were

extensively cross-examined concerning the terms of their

oral agreement. As both the court (/d. at 18a) and Judge

Aldrich in concurrence (id. at 41a) found, the record con-

clusively showed that Montaner understood that his com-

pensation was dependent on his overall performance and -

not on the outcome of the case. The record therefore

showed that the terms of the agreement were sufficiently

clear —even though not reflected in writing —to satisfy the

concerns expressed in Dailey and to afford the jury an ade-

quate basis for assessing Montaner’s credibility in light of

his possible motivation to fabricate.

11

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted. |

CHARLES FRIED 2.

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

ROBERT J. ERICKSON

Attorney

MAY 1988

sy US. GOVERNMENT PRINTING OFFICE: 1988-—202-037/60444