## Facts

- U.S. authorities seized over ten tons of cocaine aboard the Belize-registered fishing vessel F/V *Svesda Maru* in international waters off Mexico.
- Crew members Mykola Ihnatenko and Mykhailo Yurchenko were charged with conspiracy and possession with intent to distribute cocaine aboard a vessel subject to U.S. jurisdiction under 46 U.S.C. app. § 1903.
- After a 24-day jury trial in the Southern District of California, a jury convicted both defendants on both counts.
- A cooperating witness, Rene Franco-Zapata, testified for the government pursuant to an agreement under which he received: (1) cash payments (including to housing providers and to him and his family) exceeding $200,000 over about fifteen months; (2) promises of non-prosecution for him and his daughter for drug crimes; and (3) resident-alien cards for him and his family.
- On appeal, defendants argued these benefits were unlawful “things of value” provided “for or because of” testimony, violating 18 U.S.C. § 201(c)(2) and requiring reversal.

## Issues

1. Whether providing substantial financial, immigration, and non-prosecution benefits to a cooperating witness in exchange for testimony violates 18 U.S.C. § 201(c)(2).
2. Whether § 201(c)(2) applies to the United States such that prosecutors’ witness-benefit agreements would be criminally prohibited and require exclusion of the testimony.

## Decision

- The Ninth Circuit affirmed the convictions.
- The court held the government’s benefits to Franco-Zapata did not violate 18 U.S.C. § 201(c)(2).
- The court reaffirmed circuit precedent that § 201(c)(2) does not apply to the United States when prosecutors provide benefits to cooperating witnesses in criminal prosecutions.
- The court concluded the district court properly rejected the defendants’ § 201(c)(2) challenge and there was no basis for reversal.

## Legal Principles

- 18 U.S.C. § 201(c)(2) is not construed to criminalize the federal government’s use of cooperation agreements that provide benefits to witnesses in exchange for truthful testimony in criminal cases.
- Prosecutors may offer immigration-related benefits and non-prosecution/immunity arrangements to cooperating witnesses without violating § 201(c)(2).
- Substantial financial support to a cooperating witness, even in large amounts, does not by itself convert a cooperation agreement into unlawful bribery under § 201(c)(2) where the statute is inapplicable to the United States in this context.

## Conclusion

The Ninth Circuit upheld the convictions, rejecting the claim that extensive cash, immigration, and non-prosecution benefits to a cooperating witness constituted illegal witness bribery under 18 U.S.C. § 201(c)(2), because that statute does not apply to prosecutors offering such benefits in criminal prosecutions.


United States v. Ihnatenko, 482 F.3d 1097 (9th Cir. 2007)