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Jacobs v. State (2/20/98) ap-1575
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are requested to bring
typographical or other formal errors to the attention of the Clerk of the
Appellate Courts, 303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BRENT S. JACOBS, )
) Court of Appeals No. A-5882
Appellant, ) Trial Court No. 2BA-S94-634CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1575 - February 20, 1998]
______________________________)
Appeal from the Superior Court, Second
Judicial District, Barrow, Michael I. Jeffery, Judge.
Appearances: Bethany P. Spalding, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. John A. Scukanec, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer,
Judge, and Rabinowitz, Senior Supreme Court Justice.
COATS, Chief Judge.
Brent S. Jacobs pleaded no contest to one count of third-
degree misconduct involving a controlled substance, AS 11.71.-
030(a)(1) (possession of cocaine with intent to deliver), and two
counts of fourth-degree misconduct involving a controlled
substance, AS 11.71.040(a)(2) and AS 11.71.040(a)(3)(A) (possession
of one ounce or more of marijuana with intent to deliver, and
possession of cocaine). Jacobs reserved the right to appeal the
trial court's denial of his motion to suppress evidence. See
Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
Superior Court Judge Michael I. Jeffery sentenced Jacobs
to a composite term of five and one-half years of imprisonment.
Jacobs appeals, asserting that Judge Jeffery erred in denying his
motion to suppress and that his sentence is excessive. We affirm.
On August 11, 1994, Investigator Loretta Lee of the North
Slope Borough Department of Public Safety appeared before
Magistrate Dan Cadra and applied for a search warrant for a
residence located at 6565 Transit Street in Barrow. Lee testified
that a confidential informant, referred to as "CRC-126," had called
her the week before (on August 3, 1994) and had told her that on
August 2, he (the informant) had given Albert Hopson a ride to the
residence at 6565 Transit Street. According to the informant,
Hopson went into the house and returned with a quarter pound of
marijuana. Hopson told the informant that Brent Jacobs had sold
him the marijuana, and that Jacobs had stated that there was more
marijuana in the house.
Informant CRC-126 called Investigator Lee again on August
11, 1994, and told her that he had again taken Hopson to the
residence at 6565 Transit Street. Hopson had again gone into the
house and had returned with marijuana, which Hopson said he
purchased from Jacobs.
When she applied for the search warrant, Lee told the
magistrate that CRC-126 had provided very reliable information to
the Department in the past. She also told Magistrate Cadra that
informant CRC-126 first began to work for the North Slope Borough
Department of Public Safety in exchange "for [favorable]
consideration of drug charges that he had against him," but that
CRC-126 was now working "on the reward system."
Lee explained to the magistrate that the Barrow police
operated a "Reward for Information on Drugs" program, also known as
the "RID" program, and that informant CRC-126 was participating in
this program. Under RID, the amount of reward money an informant
received depended on whether the informant's tip led to an actual
seizure of drugs. If no drugs were seized, the informant received
nothing. If the police seized drugs based on the informant's tip,
then the informant could receive a reward of up to $3000.
Based on Lee's information, Magistrate Cadra issued a
search warrant for the residence at 6565 Transit Street. The
police searched the residence and seized twenty-one bindles of
cocaine weighing a total of 20.55 grams, a plastic bag containing
.95 grams of cocaine, thirteen baggies of marijuana, and drug
paraphernalia. Subsequently, Jacobs and two co-defendants were
indicted for various drug offenses.
Following his indictment, Jacobs moved to suppress the
evidence obtained pursuant to the search warrant. He claimed that
the North Slope Borough's RID program violated his due process
rights because, under the program, the amount of an informant's
reward was contingent on the success of the investigation.
Judge Jeffery held an evidentiary hearing on Jacobs'
motion. Evidence presented at that hearing established that, under
the RID program, informants received a reward of up to $3000 for
information relating to the illegal sale and possession of drugs.
The precise amount varied, depending on the level of help that the
informant provided to the police. One measure of this level of
help was the informant's willingness to testify for the government
in any ensuing court proceedings. However, the informant in
Jacobs' case, CRC-126, was paid his reward ($1,900) on August 18,
1994, shortly after the execution of the search warrant some
three months before Jacobs was indicted (November 15, 1994).
Based on these findings, Judge Jeffery denied Jacobs'
motion to suppress.
Jacobs appeals this ruling, renewing his argument that
the use of a paid informant violates due process if the informant's
reward is contingent on the outcome of the prosecution. Jacobs
relies upon State v. Glosson, 462 So.2d 1082 (Fla. 1985), a case
decided by the Florida Supreme Court under the due process clause
of the Florida Constitution.
In Glosson, a sheriff initiated a "reverse-sting"
operation. The sheriff provided an informant with marijuana and
instructed the informant to find buyers for the marijuana; the
buyers would then be prosecuted. For his part in this operation,
the informant would receive ten percent of the value of all
property that was forfeited in civil forfeiture proceedings arising
from the criminal investigations in which he participated and
testified, so long as those investigations resulted in successful
prosecutions. Glosson, 462 So.2d at 1083.
Working under this agreement, the informant proceeded to
sell marijuana to various persons, then alerted the authorities to
the sales. The informant's activities led to the arrest of Glosson
and several co-defendants, and the seizure of large amounts of
property (several vehicles and over $80,000 in cash). Id.
The Florida Supreme Court held that the sheriff's
arrangement with the informant violated the defendants' right to
due process of law under the Florida Constitution. In reaching
this conclusion, the court relied heavily on the due process
analysis adopted by the Fifth Circuit in Williamson v. United
States, 311 F.2d 441 (5th Cir. 1962).
In Williamson, an informant was hired by law enforcement
officers to make purchases of bootleg whisky from certain named
individuals. For each of the named individuals, the informant was
promised a pre-determined sum of money if he could make a case
against that person. 311 F.2d at 442. The government presented no
evidence that the named individuals were known bootleggers or that
there was any other reason to suppose that they were violating the
liquor laws. The Fifth Circuit held that the government's
arrangement with the informant violated the federal due process
clause. The court declared that, in the absence of any good reason
for the government to target specified people, the court would not
allow "a contingent fee agreement to produce evidence against
particular named [individuals] as to crimes not yet committed."
Williamson, 311 F.2d at 444. The court feared that such agreements
would lead to entrapment and "frame-up[s]." Id.
The Florida Supreme Court in Glosson realized that their
case was somewhat different from Williamson, since the sheriff had
not instructed the informant to target specified individuals.
Nevertheless, the Florida court concluded that the agreement in
Glosson was fundamentally similar to the agreement in Williamson
because it "seemed to manufacture, rather than detect, crime."
Glosson, 462 So.2d at 1084. The Florida court cited cases from
other states in which courts had overturned convictions when the
police instigated crimes, then charged the participants. Id. at
1085. Based on these authorities, the Florida court concluded that
the contingent fee agreement with the
informant ... violated the respondents' due process right under our
state constitution. ... We can imagine few situations with more
potential for abuse of a defendant's due process right. The
informant here had an enormous financial incentive not only to make
criminal cases, but also to color his testimony or even commit
perjury in pursuit of the contingent fee. The due process rights
of all citizens require us to forbid criminal prosecutions based
upon the testimony of vital state witnesses who have what amounts
to a financial stake in criminal convictions.
Glosson, 462 So.2d at 1085.
Jacobs asks us to interpret Alaska's due process clause
in the same way that Glosson interpreted Florida's due process
clause. We decline for four reasons.
First, the facts of Jacobs' case are fundamentally
different from the facts of Glosson and Williamson. In Glosson and
in Williamson, the police hired informants to act as agents
provocateurs. That is, the informants were instructed to approach
people people whom the police had no prior reason to suspect of
criminal activity and encourage these people to commit new crimes
so that the police could prosecute them. In Jacobs' case, however,
the informant came to the Barrow police with evidence of on-going
criminal activity sales of marijuana that were being conducted
from the house on Transit Street. The informant, CRC-126, had not
instigated these sales; in fact, the informant had apparently not
even participated in them. Rather, his passenger Hopson had
purchased the marijuana; CRC-126 found out about the sales because
Hopson made no attempt to conceal his purchases.
As the court in Williamson explicitly recognized, there
is a substantial difference between, on the one hand, paying an
informant to instigate new criminal activity by people with no
known disposition to commit crimes, and, on the other hand, paying
an informant to investigate on-going criminal activity by people
who have already shown a willingness to break the law. Jacobs'
case presents the latter situation.
Our second reason for rejecting Glosson is that the
decisions in Glosson and Williamson appear to have been prompted by
perceived limitations in the subjective theory of entrapment.
Under federal law, a person pleading the defense of entrapment must
show that they had no prior disposition to commit the crime.
Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848
(1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77
L.Ed. 413 (1932). Florida law likewise follows this subjective
theory of entrapment. See Munoz v. State, 629 So.2d 90, 99 (Fla.
1993); Vazquez v. State, 700 So.2d 5, 13 (Fla. App. 1997); State v.
Dawson, 681 So.2d 1206, 1208 (Fla. App. 1996). For offenses such
as bootlegging and purchase of marijuana, this would generally be
difficult to prove. Thus, if courts are to rein in unconscionable
police tactics in such cases, they cannot rely on a theory of
entrapment and must instead rely on notions of due process. Munoz,
supra; Vazquez, supra.
Alaska, on the other hand, has adopted the objective
theory of entrapment. Under the objective theory, even if the
defendant was willing to commit the crime, a court can still find
entrapment if the police used dishonorable or unacceptable means of
persuasion or inducement "[such] as would be effective to persuade
an average person, other than one who is ready and willing, to
commit the offense." AS 11.81.450; Pascu v. State, 577 P.2d 1064,
1067 (Alaska 1978); McLaughlin v. State, 737 P.2d 1361, 1363
(Alaska App. 1987). If police conduct "falls below an acceptable
standard for the fair and honorable administration of justice,"
Pascu, supra, this can be litigated in Alaska under the defense of
entrapment. Alaska courts need not engage in new interpretations
of the due process clause.
Our third reason for rejecting Glosson is that Florida
appears to be the only jurisdiction to have held that due process
forbids the use of witnesses who have a monetary interest
contingent on the outcome of the case. [Fn. 1] Moreover, even in
Florida the Glosson decision has been narrowly interpreted. See
State v. Hunter, 586 So.2d 319, 321 (Fla. 1991) (limiting Glosson
to cases in which an informant's reward is expressly conditioned
upon the informant's testifying for the government and the
government's obtaining a conviction).
Our fourth reason for rejecting Glosson is that the
persuasiveness of the Glosson analysis has been undercut by
subsequent judicial decisions. As explained above, the Glosson
court relied on the Fifth Circuit's decision in Williamson, 311
F.2d 441. However, Williamson has been overruled by the Fifth
Circuit, sitting en banc. See United States v. Cervantes-Pacheco,
826 F.2d 310 (5th Cir. 1987) (en banc), cert. denied, Nelson v.
United States, 484 U.S. 1026 (1988). The Cervantes-Pacheco
decision is discussed in more detail below.
Many courts have held that even though an informant is
paid a contingent fee for information that results in successful
investigations, there is no violation of due process so long as the
fee is not contingent on the defendant's conviction. See, e.g.,
Roark v. State, 876 S.W.2d 596, 597 (Ark. App. 1994) (due process
not violated when the government's promise of lenient treatment for
the informant is not contingent on the defendant's conviction);
Commonwealth v. Mehalic, 555 A.2d 173 (Pa. Super. 1989) (due
process not violated when the government's agreement with the
informant was not contingent on the defendant's conviction); State
v. Waff, 373 N.W.2d 18 (S.D. 1985) (due process not violated when
the government's agreement to reduce the charges against an
informant in exchange for the informant's testimony was not
contingent on the defendant's indictment or conviction).
As noted above, the informant in Jacobs' case received
his reward money soon after the search of the Transit Street
residence yielded drugs and other evidence of drug-dealing long
before Jacobs was indicted, much less convicted. Thus, the
informant's relationship with the police would not be illegal under
these cases.
Moreover, even when an informant's reward depends on the
outcome of the prosecution, a majority of the courts that have
considered this issue have concluded that there is no due process
violation in receiving the informant's testimony at the defendant's
trial, so long as the defendant is able to fully apprise the jury
of the agreement and its potential bearing on the informant's
testimony. A case which summarizes this majority view is United
States v. Grimes, 438 F.2d 391 (6th Cir. 1971). In that case, the
Sixth Circuit Court of Appeals declared:
No ... overriding policy [requires
exclusion of the testimony of an informant who is paid a]
contingent fee ... for the conviction of specified persons for
crimes not yet committed. Although it is true that the informant
working under this type of arrangement may be prone to lie and
manufacture crimes, he is no more likely to commit these wrongs
than witnesses acting for other, more common reasons. ... Rather
than adopting an exclusionary rule for a particular factual
situation, irrespective of the mode of payment, we prefer the rule
that would leave the entire matter to the jury to consider in
weighing the credibility of the witness-informant. Cf. Heard v.
United States, 414 F.2d 884 (5th Cir. 1969). In our view this
approach provides adequate safeguards for the criminal defendant
against possible abuses since the witness must undergo the rigors
of cross-examination.
Grimes, 438 F.2d at 395-96 (footnote omitted) (emphasis in the
original).
The First Circuit has also adopted this rationale,
finding that due process is satisfied by (1) allowing the defense
to elicit testimony regarding the agreement between the government
and the witness, (2) permitting the defense to cross-examine the
witness about the agreement, and (3) instructing the jury to weigh
the witness' testimony with caution. See United States v. Dailey,
759 F.2d 192, 200 (1st Cir. 1985).
As previously discussed, the Fifth Circuit overruled its
Williamson decision in United States v. Cervantes-Pacheco, 826 F.2d
310 (5th Cir. 1987) (en banc), holding that the due process clause
does not forbid the government from using contingent-fee informants
to target particular suspects. The Cervantes-Pacheco court stated:
No practice is more ingrained in our
criminal justice system than the practice of the government calling
a witness who is an accessory to the crime for which the defendant
is charged and having that witness testify under a plea bargain
that promises him a reduced sentence. It is difficult to imagine
a greater motivation to lie than the inducement of a reduced
sentence, but courts uniformly hold that such a witness may testify
so long as the government's bargain with him is fully ventilated so
that the jury can evaluate his credibility. ... We therefore hold
that an informant who is promised a contingent fee by the
government is not disqualified from testifying in a federal
criminal trial.
Id. at 315 (footnote omitted).
More generally, in Hoffa v. United States, 385 U.S. 293
(1966), the United States Supreme Court also expressed the view
that a witness' motive to lie does not render his or her testimony
inadmissible: "The petitioner is quite correct in the contention
that [the informant], perhaps even more than most informers, may
have had motives to lie. But it does not follow that his testimony
was untrue, nor does it follow that his testimony was
constitutionally inadmissible. The 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." Id. at 311.
Other cases in accord with Cervantes-Pacheco include:
United States v. Valle-Ferrer, 739 F.2d 545, 547 (11th Cir. 1984)
(holding that an informant's anticipated receipt of $1,000 if his
testimony resulted in a conviction did not render him incompetent
to testify); United States v. Edwards, 549 F.2d 362, 365 (5th Cir.
1977) (allowing testimony of an informant whose receipt of a reward
was made contingent upon the "final results" of his undercover
work); United States v. Jett, 491 F.2d 1078, 1081 (1st Cir. 1974)
(stating that payment of an informant based on the value of
services rendered is a permissible contingent arrangement); Heard
v. United States, 414 F.2d 884, 886-87 (5th Cir. 1969) (approving
admission of the testimony of an informant who was a convicted
felon and had been paid for results rather than information);
Williams v. State, 463 So.2d 1064, 1069 (Miss. 1985) (acknowledging
some merit in the Glosson result, but nevertheless concluding that
"we would be remiss in our duties were we to bar the testimony of
contingency fee informants"); State v. Salenas, 814 P.2d 136 (N.M.
App. 1991) (holding that a contingency fee agreement with a
confidential informant does not violate due process). See
generally Annotation, Contingent Fee Informant Testimony in State
Prosecutions, 57 A.L.R.4th 643 (1987).
We find the reasoning of these courts persuasive.
Finally, we note that Jacobs' case is materially
different from Glosson and all of the other cases cited above. All
of those cases involve the issue of whether an informant who works
for a contingent fee will be allowed to testify at trial. Jacobs'
case, on the other hand, involves the issue of whether a police
officer applying for a search warrant can rely on information
obtained from such an informant.
A defendant has fewer due process rights at a search
warrant proceeding than at trial. Most notably, the police apply
for search warrants in ex parte proceedings, and they may rely on
hearsay information from even presumptively untrustworthy
informants (as long as the information is corroborated). The owner
of the property has no right to cross-examine the police witnesses
who testify at a search warrant application, nor to question the
police about their informants. Indeed, if the target of the
investigation has no interest in the property searched or seized,
he or she generally has no standing to dispute the search at all.
Jacobs cites no authority to support his proposed extension of
Glosson to search warrant proceedings.
The Aguilar-Spinelli [Fn. 2] test the test used in
Alaska to test the sufficiency of search warrant applications based
on hearsay [Fn. 3] recognizes the potential unreliability of
police informants and is framed to take account of this fact. The
Aguilar-Spinelli test "requires the issuing court to be given
evidence enabling it to independently determine, first, that the
informant's source of information is reliable, and, second, that
the informant was truthful in communicating the information to the
authorities." Lewis v. State, 862 P.2d 181, 185 (Alaska App. 1993)
(citing State v. Jones, 706 P.2d 317, 320-21 (Alaska 1985)).
In Jacobs' case, the magistrate was fully informed of the
structure of the RID program and of informant CRC-126's interest in
obtaining a monetary reward for his participation in this
investigation. Investigator Lee informed the magistrate of the
range of rewards offered, and she told the magistrate that CRC-126
was aware that his reward depended on the amount of drugs
recovered.
Jacobs does not argue that the Aguilar-Spinelli test was
not satisfied in this case. He also does not argue that the
Aguilar-Spinelli test fails to adequately safeguard a person's
right to be free from unreasonable searches and seizures. In
effect, however, Jacobs is asking this court to adopt a rule that
absolutely bans the police from relying on information provided by
an informant who is or will be paid on a contingent fee basis. We
are not persuaded by this position and we conclude that such a rule
is unnecessary.
For all of these reasons, we reject Jacobs' attack on his
conviction. We now turn to his sentence appeal.
Jacobs contends that his sentence is excessive. Jacobs'
most serious offense was third-degree misconduct involving a
controlled substance, a class B felony. Jacobs had previously been
convicted of two felonies: possession of cocaine and possession of
marijuana with intent to sell. Based on these prior convictions,
Jacobs was a "second felony offender" for purposes of presumptive
sentencing. (The superior court ruled that these two convictions
merged for presumptive sentencing purposes. See AS 12.55.145-
(a)(1)(C).) As a second felony offender convicted of a class B
felony, Jacobs faced a presumptive sentence of four years'
imprisonment. AS 12.55.125(d)(1).
Jacobs' other offenses, fourth-degree misconduct
involving a controlled substance, are class C felonies. The
presumptive sentence for a second felony offender convicted of a
class C felony is two years' imprisonment. AS 12.55.125(e)(1).
Judge Jeffery found three aggravating factors: that
Jacobs' conduct "was designed to obtain substantial pecuniary gain
and the risk of prosecution and punishment for the conduct [was]
slight"; that Jacobs' "prior criminal history include[d] an
adjudication as a delinquent for conduct that would have been a
felony if committed by an adult"; and that Jacobs' "offense
involved the delivery of a controlled substance under circumstances
manifesting an intent to distribute the substance as part of a
commercial enterprise." AS 12.55.155(c)(16), (19), and (23).
Based on these aggravators, Judge Jeffery sentenced Jacobs to a
composite term of five years and six months.
In imposing this sentence, Judge Jeffery pointed to
evidence which demonstrated that Jacobs had engaged in the
commercial sale of drugs. He found that Jacobs was involved in a
fairly sophisticated retail operation selling marijuana and
cocaine. The judge also found that Jacobs was deriving his main
income and supporting himself through selling drugs.
Jacobs had an extensive prior record of drug offenses.
He was adjudicated delinquent for possession of cocaine. Unable to
successfully complete his probation, Jacobs was ultimately
institutionalized at McLaughlin Youth Center. As an adult, Jacobs
was convicted of possession of cocaine and possession of marijuana
with intent to sell, along with a misdemeanor conviction for
possession of LSD. Jacobs originally received a suspended
imposition of sentence for these crimes, on condition that he serve
ninety days in jail. However, his probation was revoked because he
failed to report to his probation officer and because he failed to
comply with the requirements of a drug monitoring program. As a
result, the superior court did not set aside Jacobs' convictions at
the end of the probation period. Based on this record, and on
Jacobs' present offenses, Judge Jeffery concluded that Jacobs'
prospects for rehabilitation were poor.
The sentence that Judge Jeffery imposed is one and one-
half years longer than the four-year presumptive term that Jacobs
faced for his most serious offense. However, given the seriousness
of Jacobs' offenses, his extensive prior record, and his poor
prospects for rehabilitation, we conclude that this sentence is not
clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974).
The judgment of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
In United States v. Waterman, 732 F.2d 1527 (8th Cir. 1984),
a three-judge panel of the Eighth Circuit Court of Appeals
concluded that "due process cannot be interpreted to allow the
government to reward its witnesses based upon the results of their
testimony," and that "[s]uch an agreement is nothing more than an
invitation to perjury having no place in our constitutional system
of justice." Id. at 1531, 1533. However, sitting en banc, an
evenly divided Eighth Circuit vacated the panel's decision, thus
letting stand the district court's denial of Waterman's due process
claim. Id. at 1533.
Footnote 2:
Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United
States, 393 U.S. 410 (1969).
Footnote 3:
See State v. Jones, 706 P.2d 317 (Alaska 1985).
