*2
POPE,
Before
ELY,
DUNIWAY and
Judges.
Circuit
POPE,
Judge.
Circuit
charged
Appellant was
in a two count
knowingly
importing
indictment with
heroin into the United
facili-
tating
transportation
and concealment
in violation of
Title
U.S.C.
§§
pleading
guilty
174. After
and waiv-
ing jury trial, appellant
tried,
found
guilty,
years
and sentenced to five
im-
prisonment
upon
count,
each
the sen-
concurrently. During
tences to run
produc-
moved for the
Margarito,
tion of one
in-
рarticipated
who
in commission
the crime as an em-
ployee of
agents.
Ap-
pellant moved
alternative
for a
dismissal of
judgment
the action and a
acquittal.
Upon
appeal
judgment
this
from the
appellant assigns
conviction
as error
upon
the case
Appellant
relies
produc-
order
failure
Roviaro v.
that be-
asserts
tion
argues
1 L.Ed.2d
in-
non-production of this
cause
supports
case
in that
the decision
should
former-participant
the court
duty of the
it was the
his claim that
we should
action and
dismissed
Margarito present
*3
United
to have
judgment.
the
reverse
now
disagree.
testify
In
the trial. We
to
at
appellant
the
that
evidence shows
The
question
it
was whether was
Roviaro the
heroin to cer-
sale of
participated in the
duty
de-
to disclose to
the Government’s
agents.
It
customs
tain Government
identity
an
the
undercover
fendant
Margarito,
informer
the
also shows that
charged, purchased
who,
it was
present and
Government, was
the
for
defendant. The
narcotics from the
court
of heroin
participated
the sale
in
held that
case,
of that
in
circumstances
agents. Appellant
he had
that
testified
identity of the informer should
Margarito
make a
by
to
solicited
been
have been disclosed. That is not the case
this solicita-
and that
of the heroin
sale
ap-
here where the record shows that the
Margarito
carried on
had been
tion
pellant
Margarito;
knew
that he had
in
period
It occurred
a
of months.
for
long
known him for a
time and was well
according
appel-
first,
to
Mexico and at
lant,
acquainted
identity.
with his
refused to
аnnounced that he
he
suggested
It
in
a dictum in United
Ap-
heroin.
participate in
sale of
D’Angiolillo, Cir.,
States v
Margarito
pellant
testified that
further
453, that the defendant is entitled to re-
very
attempt
insistent in his
to
had been
ceive from the Government “reasonable
appellant
join
persuade
to
in the sale.
cooperation
securing
appearance
[the
according
Margaritо,
appellant, made
to
of such
appears
All that
informer]”.
during
repeated
him,
calls on
which he
from the record is that one of the wit-
coward,
called
a
told him
Government,
nesses for the
a customs
improve
he would never
his finan-
agent, testified that he did not know the
condition,
cial
and told
name or
Margarito.
the whereabouts of
any regard
family
he had
for
he
his
agent
Another customs
testified that
participate.
Finally, appellant
would
Margarito had
paid
worked with him as a
changed
says,
yielded
mind,
he
his
to
period
confidential informer for the
persuasions,
agreed
partici-
these
and
year
a
or so. This witness asserted that
pate
question.
in the transactions here in
he did not know the name or the where-
appear
Margarito might
It would
abouts
agent
Another customs
important
have been an
witness for the
Margarito
testified that
had work-
defendant-appellant
made
had he been
ed with
paid
him as a
confidential in-
called,
Margarito been
Had
available.
period
year
of a
or so.
might possibly
testimony
have served
his
This witness asserted that he did not
appellant’s
of en-
claim
to corroborate
know the
Margarito;
whereabouts of
trapmеnt.
Sherman
See
that he did not know
how contact him
2 L.Ed.
stated:
“He
S.Ct.
contacts me when he has
only.”
agent’s
information
The
2d
although
further
Margarito
shows that
by appel-
denying
made
motions
agent
had contacted the customs
after the
it did
stated that
court
lant the district
affecting
appellant,
transaction
story
defendant’s
not believe
agent
Margarito
he
had not
advised
out. But
made
had
Mar-
might
requirеd
a witness
be
appellant’s claim
this is no answer
he was.
garito
where
not indicate
did
Margarito avail-
have had
that he should
he had
whether
asked
located. When
His tes-
able for
corroboration.
Margarito’s
knowledge
where-
judge
timony might
have convinced
none
abouts,
“I have
relied
entrapment had been
that the defense of
for me
information
If he has
whatever.
made out.
special employee
a
as witness.
call the
This is the
contact me.
will
rejected.
contention was
The
This
tact I
him.”
have with
690)
(p.
“The
said:
appear
made
were
that.
who are
to call all witnesses
through
Government,
reasonable ef
*
* *
prin-
testify.
competent
produced
fort,
could have
special agent
applies
ciple
even to
yet
defendant de
failed
do so whеn
participated
informer who
in the trans-
production,
manded such
there should be
action.”
hand,
trial. On the other
if the
new
The action of the court
that case
actually
unable
rea
Government
may
explained,
part
least,
at
him,
sonable effort
we cannot
fact that
court noted that
defend-
inability
require a
hold that
such
showing
no
ant
there had made
en-
case, unless
dismissal of the
оf course
trapment.
prior
made
sales of
purposely
itself
saw
*4
making
narcotics. He did
not hesitate
Margarito
disappeared,
it
that
in the
arranged
question.
sale
He
the
there in
suggested
manner
hereafter.
know
We
telephone.
a sale over the
The heroin
of no rule that
the
is
Government
under
possession.
complain-
in his
was
own
any general obligation
produce
to
getting enough
ed he was not
narcotics
informer.
purchasers,
objected
to his customers
right
buying
of a defendant
to have
from others.
testimony
informer,
the
of such an
where
widely
The case now before us is
dif-
entrapment
presented,
the defense of
is
ferent. This defendant had never before
recognized
is
White,
in United States v.
been in
similar
with
conflict
the law.
Cir.,
814, although
324 F.2d
the court
showing
There is no
that he evеr dealt
in that case noted that “Cases in this with,
before,
narcotics
or that he ever
circuit and others have made it abun
possessed any.
testimony
On his own
dantly clear that
the Government
presented
typical
entrap-
this
case of
guarantor
special
the
employee’s
of a
ap
States,
ment. See Sorrells v. United
pearance at trial.”
435,
413;
210,
U.S.
53 S.Ct.
77 L.Ed.
States,
369,
Sherman v. United
Clarke,
v.
D.C.E.D.
819,
of The admittedly direction given by was Gates, one government agent, another impossible It is for me to see that the who, until the arrest, moment of Court, District in the absence of Mar- waiting adjoining in a garito, room fairly that in adequately had been n equipped which drug the transfer of the occurred. only determine the factual dispute. Only persons issue in It is that the Government two were established required positions to an accused not the to reveal in to know whether or jail the de 1. in those circumstances Defendant had never been for present then under acquitted, activity prior not because is to be to the fendant ci’iminal charge. wrongful something only difficulty but with not do other did His he wrongful do a of he was induced to authorities was that because United country illegally entering in he not otherwise this which would twice act States, Lopez v. 373 U.S. United He was sent back done.” 1948 1953. 4, 1381, 1385, 427, L. n. 10 83 S.Ct. 433 Mexico each time. quoting (1963), court’s the trial 462 Ed.2d jury. government agent by improper on instruction a “[T]f States, over-bearing persuasion 356 or Sherman v. United also See means 369, 372, 819, wrongful person 848 S.Ct. L.Ed.2d of induces a conduct States, (1958); ordinary 287 U. v. Sorrells United to commit crime firmness a (1932). 210, commit, L.Ed. 413 S. he would not otherwise which (Em- knowledge “in of circumstances.” identity who furnishes one of Jertberg, added.) Judge phasis But of law to officers of violations formation pro- opinion Williams, in of author of law.” charged that enforcement with language emphasiz- quoted ceeded Roviaro v. 3 ing partici- (1957). the informer was not a 623, 627, L.Ed.2d 639 that, charged pant of offenses when equally established It is well against appellants sought that case identity a has been whose one stating pointedly of that “the rationale iden in the crime his participant direct government upon request. thаt the tity supplied the Roviaro case is must be identify in order should the informer supra. Roviaro United full insure can have a that a defendant logical only for the rule is reason against and fair chance to himself defend identity revelation will that the of enable charged having the offenses knowl- production of whose as witness one edge of who the is.” Our court testimony is deemed essential to fair еmphasized especially re- “this is Here, of truth. determination quirement when the of inform- fairness identity Margarito ap- of was known participant ant has been an active knowledge obviously pellant, but this charged.” (Em- crime F.2d at 796. truly appellant, justifiably, useless added.) phasis clearly To me indi- this compel presence. remained unable to his cates a belief when the Government logical prose- It seems to me that if the agents chooses one of involve required convey cution is information participation crime, the direct identity employee as to the of its who is siderations of common fairness demand participant, a criminal then it should also obligations Government assume supply information as to may vary which extent of its participant the location of the if that Here, involvement. it should have been production information is essential to the clear to the as a witness. probably invoke the defense en- government trapment. Here, the All witnesses testi would know that Mar- garito’s they ignorant fied that were would be essential to a say They full and fair whereabouts determination of the issue. previous requiring that their read only contacts Roviaro with him had identifiсation, come when but also communicated with accessi- by telephone bility them and when needed witness when his money presence necessary delivered him. Under the to fulfill the funda- case, extreme circumstances requirements this this mental of fairness. We *7 acceptably satisfactory answer not ignore spirit Roviaro if we limit me. States, Williams v. United 273 holding application even its to its narrow 781, (9th F.2d 1959), 796 Cir. cert. de an when the facts of extreme case de- nied, 951, 362 862, U.S. 4 L.Ed. mand that more than the (1960), 2d 868 our repeated, from mere disclosure of the informer’s iden- Eberhart v. 421, United tity. (9th 422 1958), Cir. “[T]he failure of Government to Under all the unusual circumstances person or other bar, as a witness of the case at does would hold that rights. violate Government, upon request the defendant’s de duty fendant, made, place timely Government has no which here was on the obliged every person stand either Mar witness with some privilege Citing or 3. Scher v. secured the Constitution United 305 Vogel 251, 254, 174, States); laws v. 151 S.Ct. L.Ed. Grauz, 316, 12, 311, (“unless defense, (1938) 110 U.S. S.Ct. essential Butler, (1884) (communication ”) ; in- . L.Ed. 158 Quarles In re & 532, attorney privileged 535-536, held L. state’s suit). (1895) (informing right defamation Ed. 1080 is a garito sup or to as a witness obtain
ply such information as bring him enable be way,
fore do I In no other court.4 believe, could it fairly to resolve the District Court question aрpellant’s
crucial and to fit ideal traditions American justice. LUCERO, Appellant,
Irene al., Appellees.
Thomas W. DONOVAN et
No. 19515. Appeals
United States Court of
Ninth Circuit.
Nov. 1965.
Rehearings Denied Jan. *8 Judge opinion produce Wigmore, See Waterman’s him. Evidence §§ Cimino, (2d (1940 ed.). Judge States v. Waterman 1963) (concurring part, dissenting pro Cir. an informer is not concludes part). Although duced when such informer is better able discussed, testify the failure of the Government to the facts in than are issue government witnesses, an informer as a witness is thеn alternative fully Judge prevented by production considered. Waterman con- be “unless his failure, light govern superior siders such lievable circumstance Roviaro, evidentiary by proven power, prevented but also under the mental rule that failure to a witness is [the deliberate defendant interferences acquitted.” indicative that his be un- 321 F. defendant] should party having power favorable to the 2d at 517.