United States v. 2007-03-30 | 05-50150 | USA VIHNATENKO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 05-50150
v.  D.C. No.
CR-01-01652-JM MYKOLA IHNATENKO,
Defendant-Appellant. 
 UNITED STATES OF AMERICA, No. 05-50197
Plaintiff-Appellee, D.C. No.
v.  CR-01-01652-JM
MYKHAILO YURCHENKO, OPINION
Defendant-Appellant. 
Appeals from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Submitted* March 30, 2007
Filed March 30, 2007
Before: A. Wallace Tashima, Raymond C. Fisher, and
Richard C. Tallman, Circuit Judges.
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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COUNSEL
Gerald Singleton, San Diego, California; Mary F. Prevost,
San Diego, California, for the appellants.
Mark R. Rehe, Assistant United States Attorney, San Diego,
California, for the appellee.
OPINION
TALLMAN, Circuit Judge:
Mykola Ihnatenko and Mykhailo Yurchenko appeal their
convictions for conspiracy to possess cocaine aboard a vessel
subject to the jurisdiction of the United States in violation of
46 U.S.C. app. § 1903(a) and (j) and possession of cocaine
with intent to distribute aboard a vessel subject to the jurisdic-
tion of the United States in violation of 46 U.S.C. app.
§ 1903(a), (c)(1)(C), and (f). Ihnatenko, the vessel engineer in
charge of fuel systems and refrigeration, and Yurchenko, the
third mate machinist aboard the smuggling vessel, were co-
defendants tried separately from the defendants whose con-
victions we upheld in United States v. Zakharov, 468 F.3d
1171 (9th Cir. 2006), and United States v. Savchenko, No. 04-
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50045, 2006 WL 3825385 (9th Cir. Dec. 26, 2006) (unpub-
lished disposition). We have jurisdiction to review appellants’
convictions pursuant to 28 U.S.C. § 1291, and we affirm.
I
Our opinion in Zakharov recounts the facts in this case,
beginning with the April 2001 seizure in international waters
off the coast of Mexico of over ten tons of cocaine aboard the
F/V Svesda Maru, a fishing vessel registered in Belize. See
468 F.3d at 1174-75. We will not reiterate them here.
Ihnatenko and Yurchenko were tried with six co-defendants
before the Honorable Jeffrey T. Miller of the United States
District Court for the Southern District of California. On
March 24, 2004, after a twenty-four-day jury trial, appellants
were found guilty on both counts.1
II
Appellants contend that the government violated 18 U.S.C.
§ 201(c)(2)2 in providing compensation in exchange for the
1The jury hung with respect to the counts against the remaining six
defendants, and the district court declared a mistrial. In July 2004, the
government retried its case against five of the six defendants. All five
defendants were subsequently acquitted.
2The federal anti-gratuity statute provides that whoever
directly or indirectly, gives, offers, or promises anything of value
to any person, for or because of the testimony under oath or affir-
mation given or to be given by such person as a witness upon a
trial, hearing, or other proceeding, before any court, . . . autho-
rized by the laws of the United States to hear evidence or take
testimony, . . . shall be fined under this title or imprisoned for not
more than two years, or both.
18 U.S.C. § 201(c)(2).
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cooperation of a witness, Rene Franco-Zapata (“Franco”).
The district court rejected this argument. We affirm.3
Franco received three types of benefits in exchange for his
agreement to testify on behalf of the government. These bene-
fits include: (1) cash payments to housing providers and to
him and his family in excess of $200,000 over a fifteen-month
period; (2) promises not to prosecute him or his daughter for
any drug crimes; and (3) provision of resident alien cards
allowing Franco and his family to live and work in this coun-
try. We have previously held that § 201(c)(2) does not pro-
hibit the government from providing immigration benefits or
immunity from prosecution to a cooperating witness. See
United States v. Feng, 277 F.3d 1151, 1154 (9th Cir. 2002)
(immigration benefits); United States v. Smith, 196 F.3d 1034,
1038-40 (9th Cir. 1999) (immunity); see also United States v.
Mattarolo, 209 F.3d 1153, 1160 (9th Cir. 2000) (leniency).
[1] Thus, the only issue we must decide is whether the gov-
ernment’s provision of cash benefits or government-paid
housing to a cooperating witness violates § 201(c)(2) and
warrants a new trial. Appellants face a high hurdle in pressing
an argument that has been rejected by every other circuit to
have considered it. See United States v. Mojica-Baez, 229
F.3d 292, 301-02 (1st Cir. 2000); United States v. Febus, 218
F.3d 784, 796 (7th Cir. 2000); United States v. Harris, 210
F.3d 165, 167 (3d Cir. 2000); United States v. Anty, 203 F.3d
305, 311 (4th Cir. 2000); United States v. Barnett, 197 F.3d
138, 144-45 (5th Cir. 1999); United States v. Albanese, 195
F.3d 389, 394-95 (8th Cir. 1999); United States v. Harris, 193
F.3d 957, 958 (8th Cir. 1999).
[2] Paid informants play a vital role in the government’s
infiltration and prosecution of major organized crime and
drug syndicates like this one. We have recognized that
3We affirm the district court’s ruling on other issues in a memorandum
disposition filed separately.
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our criminal justice system could not adequately
function without information provided by informants
and without their sworn testimony in certain cases.
. . . [I]t is a well-known phenomen[on] that the
higher-ups in criminal enterprises attempt to insulate
themselves from detection and exposure by having
their unlawful schemes carried out by others. With-
out informants, law enforcement authorities would
be unable to penetrate and destroy organized crime
syndicates, drug trafficking cartels, bank frauds, tele-
phone solicitation scams, public corruption, terrorist
gangs, money launderers, espionage rings, and the
likes. In the words of Judge Learned Hand, “Courts
have countenanced the use of informers from time
immemorial; in cases of conspiracy, or in other cases
when the crime consists of preparing for another
crime, it is usually necessary to rely upon them or
upon accomplices because the criminals will almost
certainly proceed covertly.”
United States v. Bernal-Obeso, 989 F.2d 331, 334-35 (9th Cir.
1993) (quoting United States v. Dennis, 183 F.2d 201, 224 (2d
Cir. 1950)); see also On Lee v. United States, 343 U.S. 747,
756 (1952) (“Certainly no one would foreclose the turning of
state’s evidence by denizens of the underworld.”). Recogniz-
ing the important contribution of cooperating witnesses and
informants in our criminal justice system—and the substantial
danger that such persons face from retaliation—Congress
authorized in the Witness Security Reform Act multiple forms
of government assistance, including relocation, housing, and
payment to meet basic living expenses. See 18 U.S.C.
§ 3521(b)(1). Such compensation is necessary to assure the
safety of those who turn against their former compatriots in
the underworld.
[3] We today join our sister circuits and hold that 18 U.S.C.
§ 201(c)(2) does not prohibit the government from paying
fees, housing, expenses, and cash rewards to any cooperating
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witness, so long as the payment does not recompense any cor-
ruption of the truth of testimony. See Smith, 196 F.3d at 1039
n.5 (noting that “18 U.S.C. § 201(c)(2) might apply to a way-
ward prosecutor who bribes a witness to lie on the stand”). In
reaching this conclusion we stress, as did the Third and
Fourth Circuits, that “ ‘a defendant’s right to be apprised of
the government’s compensation arrangement with the wit-
ness, and to inquire about it on cross-examination, must be
vigorously protected.’ ” Harris, 210 F.3d at 167 (quoting
Anty, 203 F.3d at 312 (internal citations omitted)). The district
court did so here, and Franco was exhaustively cross-
examined on these benefits by eight defense lawyers in their
efforts to discredit him.
[4] In addition, we note that, even if appellants had proven
a violation of § 201(c)(2), they would not be entitled to a new
trial under that statute. Smith, 196 F.3d at 1040 (recognizing
that the only remedy authorized by § 201(c)(2) is criminal
prosecution of the prosecutor, leading to imprisonment or
fine). It is not a rule of exclusion that may be invoked by
defendants to thwart their criminal prosecutions. Id.
AFFIRMED.
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