Opinion
No. A03-132.
Filed May 18, 2004.
Appeal from the District Court, Brown County, File No. K802496.
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, and James R. Olson, Brown County Attorney, Clark A. Tuttle III, Assistant County Attorney, (for respondent)
John E. Mack, Mack Daby, P.A., (for appellant)
Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Raphael Avoles Robles challenges his conviction of first-degree controlled-substance crime arguing that the contract between the police department and the informant violates Minn. Stat. § 609.42, subd. 1(4) (2000) (witness bribery), 18 U.S.C. § 201 (c)(2) (1998) (federal witness bribery), the due process clause of the United States Constitution, and also that it unlawfully entrapped appellant. We affirm.
FACTS
Appellant was charged with one count of first-degree controlled-substance crime for the sale of ten or more grams of a mixture containing methamphetamine in violation of Minn. Stat. § 152.021, subd. 1(1) (2000). He moved to dismiss the complaint, claiming that the agreement between the confidential informant to whom he sold the drugs and the police department violated state and federal bribery laws, deprived him of due process and constituted entrapment. After a contested omnibus hearing, the district court denied appellant's motion. He was subsequently convicted by a jury and sentenced. This appeal followed.
The police department first entered into a 30-day contract with the informant. A second contract extended the agreement for 23 days.
DECISION
Appellant has failed to provide this court with a transcript of the omnibus hearing, despite a specific warning about the consequences of the failure to provide an adequate record. Without a transcript, appellate review is limited to whether the district court's conclusions of law are supported by the findings of fact. Duluth Herald News Tribune v. Plymough Optical Co., 286 Minn. 495, 498, 176 N.W.2d 552, 554 (1970).
The district court found, among other things, that (1) there is no evidence to suggest that the informant or police department had targeted appellant or any other particular individual; (2) the informant's compensation was not made contingent upon his ability to obtain incriminating evidence against any particular person or group of people; (3) there is no evidence that any payments made to the informant were intended to, or ever will, "influence" the informant's testimony; and (4) there is no evidence that the agreement between the police department and the informant is illegal. The district court concluded that the agreement between the police department and informant is not "shocking to the conscience" and does not violate fundamental principles of justice.
I. Due process claim
Appellant's due process of law argument is based on his claim that police controls over the informant were grossly inadequate, allowing the informant to "freelance" without oversight by authorities. Because we do not have a transcript of the officer's testimony detailing the oversight of this "sting" operation, we are unable to review this claim.
We note that if the officer's omnibus testimony was consistent with his trial testimony, there was evidence at the omnibus hearing of police surveillance over both of the drug transactions in this case, and that the second transaction was videotaped.
The due process defense for government overinvolvement in the criminal conduct charged was explored in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), in which a plurality of the Court recognized the possibility that government conduct may require dismissal of the charge even where the defendant was predisposed to commit the offense. Justice Powell stated: Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.
State v. James, 484 N.W.2d 799, 801 (Minn. App. 1992) (citing Hampton, 425 U.S. at 495 n. 7, 96 S.Ct. at 1653 n. 7), review denied (Minn. June 30, 1992).
Because the district court's findings support the conclusion that appellant's due process rights were not violated, we cannot conclude that the district court erred in denying appellant's motion to dismiss based on due process.
II. State bribery statute
Insofar as appellant argues that the agreement between the informant and the police department violates the state and federal bribery statutes, appellant has raised a question of law. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). Because the agreement is in the record, we can review this issue despite the lack of an omnibus transcript.
Minn. Stat. § 609.42, subd. 1(3) (2000) provides that:
[Whoever] offers, gives or promises to give, directly or indirectly any such benefit, reward, or consideration to a person who is a witness or about to become a witness in a proceeding before a judicial or hearing officer, with intent that the person's testimony be influenced thereby, or that the person will not appear at the proceeding [is guilty of bribery]
. . . .
The agreement between the informant and the police department provides:
It is contemplated that such services to be provided by [Jarmon] will consist of generally the following:
. . . .
f. Testifying in state and/or federal court as necessary.
. . . .
2. Compensation to be paid to [Jarmon] for [his] cooperation, as above described, shall be as follows:
a. One hundred dollars ($100.00) for each purchase of controlled substances as defined in Minnesota Statutes § 152.02, except marijuana or its derivatives. The purchases must be corroborated to the satisfaction of the office of the Brown County Attorney by such means as taped telephone calls from the seller, body transmitter recording with drug related conversations, and transactions, surveillance by video, and/or physical surveillance by law enforcement officers of purchases made by [Jarmon]. Corroboration will be sufficient if, in the opinion of the Office of the Brown County Attorney, there is no reasonable doubt that the individual did in fact distribute and/or sell controlled substances to [Jarmon].
b. Five hundred dollars ($500.00) if [Jarmon] purchases controlled substances from at least ten (10) different individuals. An additional Five hundred dollars ($500.00) if . . . [Jarmon] purchases controlled substances from fifteen (15) different individuals. Payment will not be made until the completion of the prosecution of all individuals selling controlled substances to [Jarmon].
c. Two hundred dollars ($200.00) as and for living expenses.
Minnesota courts have never held that Minn. Stat. § 609.42 (2000) should be interpreted as prohibiting payments to informants. And, under the plain language of the statute, intent to influence a witness's testimony is a necessary element of bribery. The written agreement does not require the informant to testify in a particular way in order to be paid, and we must accept the district court's finding that appellant has not produced any evidence tending to show that the agreement had the intent or effect of influencing the informant's testimony.
Furthermore, even if the agreement violated the bribery statute, appellant has not produced any authority that such a violation would require dismissal of the charges or reversal of appellant's conviction. We conclude that the district court did not err by denying appellant's motion based on violation of the state bribery law and hold that appellant is not entitled to reversal of his conviction on this basis.
III. Federal bribery statute
Appellant also argues that the agreement violates the federal witness bribery statute. The federal bribery statute provides:
[Whoever] directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or for or because of such person's absence therefrom . . .
. . . .
shall be fined under this title or imprisoned for not more than two years, or both.
18 U.S.C. § 201(c)(2) (1998).
It is well settled that payments to police informants do not violate the federal bribery statute. In United States v. Albanese, the Eighth Circuit held that it was not a violation of 18 U.S.C. § 201(c)(2) for a government witness to receive leniency on criminal charges and monetary payments for his cooperation in investigating and prosecuting drug conspiracy charges against the defendant and others. 195 F.3d 389, 395 (8th Cir. 1999). The Eighth Circuit recognized the "long history of allowing the government to compensate witnesses for their participation in criminal investigations." Id. at 394.
Furthermore, there is no authority that the federal witness bribery statute applies to proceedings in state courts.
Of course, the broadest reading of [ 18 U.S.C. § 201] might theoretically permit a federal prosecution for bribing a witness in a state court proceeding. . . . Such an interpretation, however, ignores the language of limitation modifying" any court" in section 201; the court must be "authorized by laws of the United States to hear evidence or take testimony." Clearly, state courts are not authorized by federal law to take testimony.
United States v. Kennings, 861 F.2d 381, 387 n. 12 (3rd Cir. 1988) (holding that federal bribery statute applies to proceeding in District Court of the Virgin Islands). For these reasons the district court did not err in denying appellant's motion to dismiss based on violation of the federal witness bribery statute.
VI. Entrapment
Although appellant raised the issue of entrapment in this appeal, he failed to argue it or cite any statutory or case law to support his position. Issues not briefed on appeal are waived. State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). We therefore decline to address this issue.