The opinion of the court was delivered by: DITTER
Angel Chavez was found guilty of possessing a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1982). Prior to trial, defendant filed a motion to dismiss for outrageous government conduct. I ordered that an evidentiary hearing be held on the motion after trial should the jury find in favor of the government and the defendant desire to supplement the evidence that had been introduced. Defendant made no such request. Accordingly, based on the trial evidence, and for the reasons that follow, the motion will be denied.
Defendant presents two distinct factual arguments, both of which he contends support the conclusion that the government's conduct was so outrageous that he was deprived due process of law. First, defendant avers that the government informant, Jimmie DeLoach, was compensated by the government on a contingent-fee basis, and that such a method of compensation created an excessive potential for unreliable testimony or activity by DeLoach. Second, Chavez asserts he was lured by DeLoach, who said he was a government official, into participating in what Chavez believed was a government sting operation to apprehend unnamed drug traffickers. Instead, he found himself arrested for the instant offense.
The conduct of law enforcement officials may indeed be so outrageous that due process principles would bar the government from securing a conviction. See United States v. Russell, 411 U.S. 423, 431-32, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973); United States v. Jannotti, 673 F.2d 578, 606 (3d Cir.), cert. denied, 457 U.S. 1106, 102 S. Ct. 2906, 73 L. Ed. 2d 1315 (1982); United States v. Twigg, 588 F.2d 373, 379 (3d Cir. 1978). Fundamental fairness will not permit a person to be convicted of a crime in which governmental conduct was "outrageous." Twigg, 588 F.2d at 379. However, a court must exercise "scrupulous restraint before [denouncing] law enforcement conduct as constitutionally impermissible." Jannotti, 673 F.2d at 607. This restraint is particularly appropriate in the narcotics-prosecution context, where the Supreme Court has noted:
One can not easily exaggerate the problems confronted by law enforcement authorities in dealing effectively with an expanding narcotics traffic . . . which is one of the major contributing causes of escalating crime in our cities . . . . Enforcement officials therefore must be allowed flexibility adequate to counter effectively such criminal activity.
Jimmie DeLoach testified that on many occasions since 1975 he has been a government informant, receiving $200 to $500 per week for this work. Sometimes he was also paid a bonus at the end of a case, dependent upon the quantity of drugs discussed or ultimately seized. In the instant case, he was paid on a weekly basis plus $2500 when the matter was concluded. Presumably relying on Williamson v. United States, 311 F.2d 441 (5th Cir. 1962), cert. denied, 381 U.S. 950, 85 S. Ct. 1803, 14 L. Ed. 2d 724 (1965), defendant contends that this was a contingent-fee arrangement which created such a risk of questionable dealing on the part of DeLoach that a conviction for the offense charged may not stand consistent with the fifth amendment.
In Williamson, the Fifth Circuit reversed the convictions of two defendants who had been charged with various liquor offenses. Government agents had promised an informant that he would be given a specified sum of money if he could arrange a purchase of whiskey from the defendants. In striking down the conviction as violative of due process, the court stated,
Without some justification or explanation we cannot sanction a contingent fee agreement to produce evidence against particular named defendants as to crimes not yet committed. Such an arrangement might tend to a "frame up," or to cause an informer to induce or persuade innocent persons to commit crimes which they had no previous intent or purpose to commit. The opportunities for abuse are too obvious to require elaboration.
Several circuits have criticized or declined to follow the Williamson rationale. See United States v. Hodge, 594 F.2d 1163, 1166 (7th Cir. 1979); United States v. Grimes, 438 F.2d 391, 394-95 (6th Cir. 1971). See also United States v. Ladley 517 F.2d 1190, 1193 (9th Cir. 1975) (dictum) ("it does not appear that merely the offering of a governmental reward for activities leading to the arrest of the appellant is, in itself, violative of Fifth Amendment due process") (emphasis in original); Comment, 49 Va. L. Rev. 1021 (1963). These courts reject a per se exclusionary rule, arguing that a court's supervisory power over federal criminal proceedings should be sparingly exercised and expressing confidence in a jury's ability to consider the existence of a contingent-fee arrangement in assessing an informant's credibility. See Grimes, 438 F.2d at 395-96; Hodge, 594 F.2d at 1165-67.
Other circuits, while adopting Williamson in principle, have limited it in application. See, e.g., United States v. Valle-Ferrer, 739 F.2d 545 (11th Cir. 1984) (limiting Williamson to those situations in which the government offers a contingent reward to an informant for securing evidence from or the arrest of a particular individual); United States v. Cuomo, 479 F.2d 688 (2d Cir. 1973) (same), cert. denied, 414 U.S. 1002, 94 S. Ct. 357, 38 L. Ed. 2d 238 (1973).
The Fifth Circuit itself has confined Williamson to a narrow set of circumstances, announcing two factors which militate against its application: when the government did not target specified individuals as the subject of the informant's efforts, see United States v. Joseph, 533 F.2d 282 (5th Cir. 1976), and when the agent, not the informant, purchased the illegal substance. See United States v. ...