State v. Simpson

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-426


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 2, Chittenden Circuit

Coryell E. Simpson                           October Term, 1990


Frank G. Mahady, J.

Philip R. Danielson, Chittenden County Deputy State's Attorney, and Michael
  Kurt, Law Clerk (On the Brief), Burlington, for plaintiff-appellant

Walter M. Morris, Jr., Defender General, and David J. Williams, Appellate
  Attorney, Montpelier, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ., and Peck, J. (Ret.),
          Specially Assigned


     MORSE, J.   The State appeals dismissal of charges against defendant
for selling marijuana, arguing that his federal due process rights were not
violated when an informant suggested that she could buy drugs from defendant
and then did so on a contingent-fee basis as an agent of the police.  We
agree and therefore reverse.
     In the late summer of 1988, a woman approached a Burlington police
officer with the idea of becoming a "cooperating individual," or informant,
in drug cases.  The would-be informant named five people from whom she
thought she could buy drugs.  She was hired, with the condition that
successful buys would entitle her to unspecified compensation.  On
September 2, 1988, the informant was searched and equipped with a body wire.
She then bought marijuana from defendant.  After turning her buy over to the
police, she was paid $25.  During the next ten days, this procedure was
repeated twice, and her drug buys from defendant were duly compensated by
the police.  Defendant moved to dismiss the three drug charges on grounds
that his federal due process rights had been violated.  Relying on
Williamson v. United States, 311 F.2d 441, 444 (5th Cir. 1962), United
States v. Cresta, 825 F.2d 538, 548 (1st Cir. 1987), and United States v.
Risken, 788 F.2d 1361, 1373-74 (8th Cir. 1986), the trial court agreed,
ruling that the combination of "pretargeting" and the contingency fee
arrangement violated due process.
     At the outset we note that only Williamson, a case universally rejected
by other federal courts and subsequently overruled by the fifth circuit,
United States v. Cervantes-Pacheco, 826 F.2d 310, 316 (5th Cir. 1987),
stands for the proposition that the payment of a contingent fee to an
informant is a per se violation of due process.  Cresta holds that
contingent fees are permissible where appropriate safeguards are observed to
prevent abuses.  825 F.2d  at 545-47.  The federal circuits uniformly agree.
United States v. King, 803 F.2d 387, 391 (8th Cir. 1986); United States v.
Hodge, 594 F.2d 1163, 1166-67 (7th Cir. 1979); United States v. Jones, 575 F.2d 81, 85-86 (6th Cir. 1978).  See also People v. Mills, 40 Ill. 2d 4, 18,
237 N.E.2d 697, 705 (1968) (contingent fee payments to informers in
narcotics cases are permissible).  Risken goes even further than Cresta,
holding that fees contingent on conviction -- rather than on "cooperation"
with law enforcement officers -- do not violate due process, as long as
defendant is not pretargeted.  788 F.2d  at 1374.
     No overriding policy requires us to disallow the use of a paid
informant in this case.  Informants are usually self-interested, whether the
inducement is money or leniency in a criminal case.  Even an undercover
police officer acting as an informant might be motivated by a desire to
enhance a professional record.  But in either case, defendant is afforded an
opportunity to impeach the informant's credibility at trial.  As the court
reasoned in Cresta,
         testimony of interested informants is not so inherently
         unreliable that it must be excluded.  Frequently, in-
         siders are the only source of information about criminal
         activity, and the government has a legitimate law
         enforcement interest in procuring their cooperation.
         While the risk of perjury is recognized, courts have
         chosen to rely upon cross-examination to ferret out any
         false testimony.  Rather than adopting an exclusionary
         rule, courts have chosen to leave the matter to the jury
         to consider in weighing the credibility of informant.

825 F.2d  at 546 (citations omitted).  See also Cervantes-Pacheco, 826 F.2d 
at 315 (jury to evaluate credibility of paid informant).
     Thus, the only issue here is whether the police improperly used a
contingent-fee arrangement to implicate a pretargeted individual.  Concerns
about pretargeting arise when the government chooses an individual, lacking
prior knowledge of his or her criminal activity, and pays an informant to
convict that individual.  Cresta, 825 F.2d  at 548, and cases cited therein.
Pretargeting, however, does not always generate due process concerns.  See,
e.g., Harris v. United States, 400 F.2d 264, 266 (5th Cir. 1968)
(pretargeting is permissible where the government has prior reasonable
suspicion of defendant's alleged criminal activity).
     The usual focus of a pretargeting analysis is government overreaching.
United States v. Yater, 756 F.2d 1058, 1067 (5th Cir. 1985) (due process not
violated unless "the government directs the informant to implicate
government-pretargeted specific defendants").  But in this case, the
government did not pretarget defendant.  Rather, he became a target when the
informant approached the Burlington police and named him along with others
as individuals from whom she knew she could purchase drugs.  There is no
evidence that the police had any prior knowledge about defendant.  The
informant's accusation, while possibly insufficient to establish probable
cause to arrest defendant, was certainly cause to investigate him.
     Even though this is not strictly a pretargeting situation, it still
manifests a potentially troubling combination of elements.  The informant
fingered defendant and then convinced the police to pay her to gather
evidence to implicate him.  She played a big part in building the case
against defendant, and the possibility of a "frame up" certainly existed.
But to the extent that the informant may have been attempting to frame
defendant, the police took sufficient precautions.  Using a body wire, the
police monitored the transactions between the defendant and the informant.
Moreover, the informant was searched before and after the transaction, and
she was debriefed after the transactions and all drugs were turned over to
the police.  Defendant has no quarrel with the behavior of the police after
he was targeted by the informant.  We cannot conclude that under these
circumstances defendant was denied his federal due process rights.
     Reversed and remanded.

                                        FOR THE COURT:




                                        Associate Justice