The opinion of the court was delivered by: DITTER
Al Kinkle was convicted of conspiracy to possess a controlled substance with intent to distribute and unlawful use of a telephone. Presently before the court is defendant's motion for a judgment of acquittal or a new trial. For reasons that follow, this motion will be denied.
Defendant first contends that the admission of the testimony of government informant Vincent Ponzio violated his right to due process of law under the fifth amendment. According to Kinkle, the government agreed to have state charges against Ponzio dropped, provide favorable testimony during Ponzio's sentencing in New Jersey on other charges, limit Ponzio's potential period of incarceration for the charges resulting from this investigation, and finally, Kinkle alleges that the government agreed to pay money to Ponzio.
Kinkle asserts that the trial testimony shows that the FBI and DEA paid Ponzio thousands of dollars during the period of his cooperation. Most important, defendant contends that Ponzio understood that he would receive additional money at the conclusion of the case if Ponzio's cooperation resulted in Kinkle's conviction, and that this alleged contingency agreement deprived Kinkle of due process.
The government responds by stating that no such contingency agreement was formed. It acknowledges that it did enter into a plea agreement with Ponzio, and an FBI agent did mention the possibility that Ponzio might receive an unspecified sum of money upon completion of his cooperation. The government asserts, however, that such an agreement does not preclude Ponzio's testifying against Kinkle.
The conduct of law enforcement officials may 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, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973); United States v. Jannotti, 673 F.2d 578, 606 (3d Cir.), cert. denied, 457 U.S. 1106, 73 L. Ed. 2d 1315, 102 S. Ct. 2906 (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 cannot easily exaggerate the problems encountered 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.
Hampton v. United States, 425 U.S. 484, 495-97 n.7, 48 L. Ed. 2d 113, 96 S. Ct. 1646 (1976).
Courts have identified two chief due process concerns that flow from the use of contingency agreements: the fear of inducing the government's promisee to perjure himself while testifying, and the fear of inducing the government's promisee to "create" an offense where none exists. The vacated panel opinion in United States v. Waterman, 732 F.2d 1527 (8th Cir. 1984), cert. denied, 471 U.S. 1065, 105 S. Ct. 2138, 85 L. Ed. 2d 496 (1985), focuses on the potential for a contingency agreement to induce perjury. In Waterman, the panel accepted the district court's determination that a plea agreement between the government and a witness who testified before the grand jury which indicted defendant constituted a contingency agreement. The district court found that the government agreed to provide more favorable treatment at the witness' sentencing if his testimony before the grand jury led to indictments. Id. The panel differed with the ultimate conclusion of the district court, however, by stating that the government could not, consistent with due process, offer the testimony of a witness who was party to such a contingency agreement. See id. at 1531. The panel stated, "Such an agreement is nothing more than an invitation to perjury having no place in our constitutional system of justice." Id. The panel opinion was subsequently vacated by the equally-divided court en banc, thus affirming the trial court's determination that no constitutional violation took place. Id. at 1032.
No decision to date has embraced Waterman to find a due process violation. In United States v. Dailey, 759 F.2d 192 (1st Cir. 1985), the First Circuit harshly criticized Waterman, commenting that the panel's decision was "unprecedented in modern times." Id. at 196. The First Circuit continued by stating, "Long ago the courts rejected the notion that the testimony of co-defendants and other interested witnesses was so likely to be unreliable that it should be excluded. Recognizing that such individuals were frequently the most knowledgeable witnesses available, the courts have chosen to allow them to testify and to rely upon cross-examination to ferret out any false testimony they might give." Id. (citations omitted).
See also United States v. Valle-Ferrer, 739 F.2d 545, 549 (11th Cir. 1984) (per curiam) (rejecting the argument that reward contingent upon conviction rendered inadmissible the testimony of government informant).
Some courts, led by the Fifth Circuit in Williamson v. United States, 311 F.2d 441 (5th Cir. 1962), cert. denied, 381 U.S. 950, 14 L. Ed. 2d 724, 85 S. Ct. 1803 (1965), have also expressed doubts about the reliability of investigative efforts of informants who have been promised rewards that are contingent upon the apprehension or conviction of suspects. The chief concern in this context is that an investigatory contingent arrangement might cause an informant to induce otherwise innocent persons to commit crimes they had no previous intent to commit. Id. at 444. Accordingly, several courts have either held or stated in dicta that due process is offended if the government agrees to pay an informant a reward for obtaining evidence about the criminal activities of a specified individual. See Valle-Ferrer, 739 F.2d 545 (11th Cir. 1984); United States v. Joseph, 533 F.2d 282 (5th Cir. 1976), cert. denied, 431 U.S. 905, 52 L. Ed. 2d 389, 97 S. Ct. 1698 (1977); United States v. Cuomo, 479 F.2d 688 (2d Cir.), cert. denied, 414 U.S. 1002, 94 S. Ct. 357, 38 L. Ed. 2d 238 (1973); Williamson, 311 F.2d at 444.
Other courts have been unwilling to elevate the concern about reliability to the level of a due process violation. 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.), cert. denied, 402 U.S. 989, 29 L. Ed. 2d 155, 91 S. Ct. 1684 (1971). "These courts reject a per se exclusionary rule, arguing that a court's supervisory power should be sparingly exercised and expressing confidence in a jury's ability to consider the existence of a contingent-fee agreement in assessing an informant's credibility." United States v. Chavez, 620 F. Supp. 1516, 1520 (E.D. Pa. 1985), aff'd mem. 787 F.2d 584 (3d Cir. 1986).
The Third Circuit has not expressed itself on either concern. Even if I were to follow Williamson and its progeny or the vacated panel opinion in Waterman, however, there would be no due process violation in this case. This is true simply because I find there was no contingency agreement between Ponzio and either the FBI or DEA.
Kinkle myopically focuses on the following interchange between defense counsel and Ponzio to conclude that Ponzio and the government had formed an agreement that ...