McCoy Gilmore v. United States

RIVES, Before CAMERON and Judges. BROWN, Circuit BROWN, Judge. R. Circuit JOHN appeal from a conviction and sub- Boggs Act, sequent as a sentence multiple 2557(b), offender un- narcotics, 21 sale of U.S.C.A. lawful § 174, presents as the question refusal of the Trial Court Agent require a Narcotics disclose non-paid informer, of a more the name “special euphemistically referred employee.” prosecution case was made entirely on the Mor- alleged made the ris who De- offered at all. ample evidence sustain the There guilty verdict warrant in our discussed brief inferences outline facts. 566 Morris arrived. the tavern when oral recited On the version Anonymous arrived, Mor- When he told

Morris, undisclosed the function ris governmentally-protect- what he had said the defendant. to whose Shortly, appeared us had the anonymity it makes convenient ed may ap- previously “Anonymous,” described him as to refer to brief, which, course, superficial. In defendant treated pear to had, presuma- Turn- a since he story seaman Morris entered was bly Anonymous, “heard all about Tavern, establishment bar-like er’s Houston, a you.” Then, by Appellant operated and defendant Texas, when Morris Anonymous door, table. went rear a toward the Gilmore, a seat at and took j'oined already Tav- the two of them. While Morris Anonymous, was who table, Anonymous to bar, testified that all did was came over at the ern cigarette, Morris, ask after walked one spoke a few words Anonymous phone went to a Defend- then away bar. returned to the Anony- booth, acknowledge had and said the table ant then during you” present part mous of that was “heard all about had that he Morris position Anonymous, was in a understood, conversation and Whereupon Mor- have heard was what said. Whether Morris seaman. heard, he, me had had of it “do what inquired could if defendant ris Anonymous “Yes, actually heard, replied, Morris any good” had to which he was, say. unable can.” think I by Morris, Defendant, then followed Obj'ection revealing Anony two door. The the rear walked toward solely ground mous’ on the during there, which conversation talked privilege. of the so-called informer’s We get a made for Morris to the deal think, however, that under Portomene v. immediately caps with a small number of 582; States, Cir., 5 221 F.2d “buy” larger as de- as soon to be effected Conforti, Cir., 7 United States During part another. contacted 365; F.2d Sorrentino v. United Anonymous time, present. Cir., 627, 163 F.2d correctness of gave defendant then $20.00 Morris grant precipitated which had of certi Defendant left officialfunds. marked resulting approval orari with of them in later moments door and few the rear 53, 77 Roviaro v. United 353 U.S. through the front door and told returned 639, 1 L.Ed.2d testi S.Ct. your in the front seat o-f to “Look mony permitted. should have been immediately Morris went car.” more meets the definitive declaration of capsules containing “ four and found * * * in Roviaro whenever the heroin. subsequently identified testimony may former’s helpful be relevant and defense,” identity to the accused’s produc- examination But cross time, be disclosed. At the same must demand under 18 pursuant to application spirit comes here within investigative of two written broadly laid of the rule down. “We be report made Morris and statements respect no fixed rule with tendered, lieve that objection, without which were justifiable. problem disclosure complete form save for excision of balancing public that calls for appeared Anonymous’ name wherever protecting Anonymous’ the flow in text, interest revealed that against right Anonymous formation individual’s not so limited. function prepare defense. Whether to do in this claimed had considerable First, proper renders balance nondisclosure er he who depend particular stage. Anonymous must roneous It was who set case, taking Anony- of each circumstances about Morris. told charged, pos the crime Morris as consideration described a obtaining had seaman mous defenses, possible significance was interested sible friend testimony, Anonymous already informer’s other narcotics. some immunity preference Roviaro v. United whether relevant States, factors.” 53, 61, promised at been him if he undertook to page up 628, 1 work cases, L.Ed.2d work on other whether addict, he was previ- whether he had Anonymous than had done more Here ously dealings known defendant or had merely supply inform or information. might given with him that have rise to setting participant He was an active hope vengeance, of like. creating stage, atmosphere of Anonymous As continuing principal was a actor confidence and in beforehand during before and performance, during presence his close it he was and certainly what he knew was of critical conversation. More- moments material and relevant. over, version, In this in Morris’s own might shortly been the seeds of inno- found tied into the narcotics cence, of only doubt, or over- on of his seat automobile front whelming corroboration. As the infer- the circumstance of the conversation ences from sought buy spectrum it covered the full and de- which Morris guilt, process agreed caps. This fendant to sell a few truth-finding, which should be im- the aim of made that conversation of critical every trial, compelled portance. its disclosure. If what said was said said, authorized the inference it excising Anonymous’ Since name from possession which in motion the whole set investigative reports statement ten- statutory presumptions. train dered under 18 U.S.C.A. 3500 was § If no conversation took subsidiary ruling consistent substantially different, place, or if it was primary ruling with the that no disclo- might inferences warranted likewise sure, orally writing, or in per- would be different, jury whether for resolution be mitted, phase we need not discuss this question as a “fact” or the Court separately. aOn retrial the name must one of law. given and since the statements were complete otherwise person affirmatively and tendered into evi- Here shown limitation, hearing dence without to include within distance who informer’s name will now be a matter of an actual witness to the crucial conversation, course. transaction. said, said, how was what both only point This leaves said, presented was not matters what sustaining the Court erred in the Govern materiality. great of immediate quash subpoena motion to ment’s only relevancy. did it what Not bear on duces tecum on eve issued of trial and made, trade been if indeed sort of By returnable its its commencement. made, directly had been but it bore Agent Charge terms the local Narcotic giving other circumstances rise to (not Morris) produce was ordered to and its consummation transaction “ * * * currently regula effective “finding” the Agent’s tions, orders, bulletins, manuals, field These car. matters would in- policy letters other or matter of a direc Anony- motive interest clude the promulgated by your superi tive nature protected mous. Since Narcotics, in the Federal ors Bureau of examination of Morris cross on these styled or however Bureau, described within that negative only produced “I matters your possession which are in response, defendant was de- know” don’t your subject to control.” opportunity determining nied the Anonymous. certainly motives of There was interest abuse of well have considered discretion it im- shown here. To Court’s passing Judge’s credibility on portant in Trial know statement that “The de- charges (indictment, inquire whether is not entitled to informa- workings complaint) bureau were or inner of the officeof the Bureau against pending Narcotics,” Anonymous, then defendant’s brief “Why ap- did below abuse discretion not? the retort: .makes denying subpoena appellant’s sub- answer is that motion for pellant Our asks.” discovery duces poena. But subscribe is not tecum. cannot duces tecum reversing although may perhaps such, its action weapon this conviction ground discovery made the trial court committed aid of at times approving reversible error in excision under Rule 16. Cf. Bennethum, D.C.Del., 21 F.R.D. of the in statements 17(c), former’s of Criminal name. The were vol Federal Rules statements Rule untarily produced by U.S.C.A., Procedure, relates pursuant documentary Congress Sep evidence production to the Act of contemplates, 2,1958, 3500, objects. tember 18 which Rule and U.S.C.A. § “ * * * empowers any sense, docu- the order the United broader court * * as materials, produce any “to States admissible ment or other statement * * Dairy Co. of evidence, *,” possession the Bowman witness the of the 221, 214, subject 71 United States which relates the 879, matter 675, to which the 95 L.Ed. witness testi (Emphasis added.) This statute fied.” companion case nor in the Neither here derogation is in is common law1******and (and fully developed where it was more supplement pro the nature of a the proceedings and incorporated trial in the provided by cedures Rule Federal by of the Court record counsel) consent Procedure, by Rules of Criminal which any showing made that per criminal are defendants in cases relevant would be internal matters these exploration mitted limited the Gov guilt or issue the or material to the investigation ernment’s files. de- As close of defendant. suggest if an that came was to probably that, It would conceded testimony used, the were informer’s cases such us, as that the burden before directives, etc., the policy would show rests attempting put a defendant they paid. were hired on which basis error, (1) the trial that court to show categorically announced the Court But the excised matter was relevant the offered, he if such that subject testimony,, matter of the witness’ examination on allow full cross (2) matter,. that it related to a material Of course no circumstances. such (3) rights that the substantial of the de although Indeed, presented. former was prejudiced by excision,2 fendant were the kept erroneously so, Informer was the (4) that, ques since decision of the completely Actu- out the case. almost by argument tion raised defendant committed however, ally, before subpoena discretion, that to the court’s sound Court revealed court Trial function no such limited have had my was to below abused its discretion. In hope that was out of a issuance and its opinion, any did make defendant not might up. something helpful Rule turn sustaining proof propositions, those purpose. 17(c) available any them, and the has sub and remanded. Reversed effort, speculation proof in its stituted deficiency. supply the Judge (dissent- CAMERON, Circuit “subject ing). matter as to which testified” when ha[d] witness portion major- agree with the produced statements were ity opinion holds was. which that court Advisory 16 of the Criminal Rules uses note to Rule 2. Rule Committee 1. The “reasonable,” case, “material” and words Rule a Second Circuit United 16 cites Rules, Rosenfeld, stating: the Civil U.S.C.A. its v. 57 F.2d 74 34 of 28 discovery counterpart, existing phrase “show- uses the law civil under “Whether therefor,” 52(a) good permitted ing may and Rule in criminal cases is cause provides any Indiviglio Rules of the Criminal cf. And doubtful.” disregarded Cir., which shall be F.2d error “does- rights.” seq., cited. affect and the authorities et agent defend- The sole contention purchase made defendant colloquies court, capsules He testi- in his at of heroin. aimed ant of four forcing supply behind ex- came from fied Government to informer, operating cised name of the was that bar he was sitting. agent being persons pres- four one of table where the beginning bar, may part ent have heard In conversation continuing towards two walked between defendant as the arranged agent. agent argues, bar, back door of the Defendant the in- four deliver him elicited that defendant Defend- former as a witness as to what to be heroin. which out turned of the was said and the placed front seat the defendant ant between agent during agent’s bar conversa- came back of the car and purpose, tion. revealed sole advised the That so record, entirely be- was had The conversation sup- having sired to serve name agent, men- defendant and the tween plied to him. made of the informer any proof the Without at all that the and was an that there fact fendant could have favorable obtained sale, purchase and entire transaction of majority source, form this the alone, was two consummated between the he to reverse content case because the Agent subject the matter “might” by helped in- the only was the examination. He direct has, former as a witness. a surmise Such who testified witness my opinion, If we whatever. no basis analyzed except the sub- chemist the majority and ex- follow the lead of the ject plore of the the terms of the two statements Agent Morris, informer we learn the that informer was The introduced agent was had told defendant that the attorney case the defendant. the coming presently purchase some to Agent It after Morris’ statements agent heroin, and friend the was his that attorney were delivered to defendant’s probably in- a seaman and would time, brought up, he first that the buying terested in considerable heroin special employee of the that there was way quantities; for defend- and the that present Bureau of Narcotics the bar. agent approach ar- ant to the had been attorney not to Defendant’s was careful ranged by certainly is informer. the bring jury any out before the connection reasonable that so oblivious not special employee may had with have turn the interests would defendant the transaction between defendant give testimony in around and favorable case, the His connection with the behalf. his emphasized so much in the (2) clearly opinion, appears The record the from the two re- reveals that forming ports defend- Morris which were never transaction the basis of evidence, introduced in which the ant’s conviction was consummated while as to jury ad- whatever.4 It the two were at the and when table information hearing mittedly clear, therefore, informer that name of the not There, agreed informer, whose were never distance. the defendant activities placed money jury, relevant to deliver four before was not and the testimony given by paid. to The the witness was as the two upon which defendant convicted. to the rear of bar related walked charged two tendered reports The indictment that “did know- and delivered to unlawfully, defendant’s counsel fraudulently given ingly sell Leon approximately opportunity study- he was grains six of heroin hydrochloride.” reports appear record, them. The is clear were never they but of- jury. in evidence or seen by fered agent prove, could, subsequent purchases latter which the former to if he hoped make, portions did which he conversations between but agent, con- make. the defendant and the nection of informer with this defendant, argument From of the is not has been direct and vital hospitable apparently which found upon. case the decisions relied thinking, lodgment majority’s in the States,5 re- Roviaro chief expected the defendant was to be may defendant, liance used bandying holiday a Roman would have There, made to illustrate. the sale was jury, informer about before the money paid the informer and the activities, which result with the informer of the all alone knew normally follows such a guilt facts which Roviaro’s diverted minds of the are nocence rest. guilt of the the witnesses introduced the Govern- re- perfidy worth It is informer. of the they largely ment was confined to what therefore, cause peating, narrow say saw the informer heard him do or sought be served the defendant dealings Here, he had his Roviaro. get as a witness informer hold of the purchase informer had no taking immaterial conversations to the money, and sale. He did deliver place which might of the bar the rear toward conversation, did not hear the did not have heard knowledge delivery witness or have proven defendant. to the beneficial most, of the heroin. At he did was defend- The burden rested broker, willing bringing together act as quest ant, name whose sole buyer willing and a seller. And the Gov- did not he show that prove ernment did not this. is learned It ma- already information. have this only by examining agent’s reports, conjecture that jority seem content to whose contents de- revealed to who, man have known the alone, jury. not to opinion, be- according majority questioned It would not be that the friend, trayed turned lied action of requests court below on defendant’s government narcotic him over ato de- of discretion. No supposed Surely judges are not rights involved, nial of constitutional is enough this defend- naive to assume trial, but locating the mechanics of of dealing experienced ant, narcotic procuring having paid the enforcement officials witnesses. Of such a situation Whit- doing, make penalty for twice so Procedure, page man’s Federal Criminal through person a a customer contact with 398, citing Supreme cases, several Court stranger him, name whose says: upon surmise know. A based did not credulity premise “The harmless error as de- would tax rule veloped under reasonable the statute and con- most innocent. indulge such, 52(a) prevents ap- conjecture, is tinued Rule an if we are being peal quest a confidant of the turned informer was that defendant, error, prevents completely known and trusted for matters con- etiquette mere cerned with the him. trial and with the minuitiae and holdings No case procedure formalities of from touch- reversing opinion here in ing merits result.” failure to furnish the name of the point cf. if And also Michelson United Even reserved former. went 93 L.Ed. the court below the beyond Indiviglio his contention that he en- supra, F.2d at 565. to know the titled the in- 623, 1 L.Ed.2d 639. U.S. 53. 77 S.Ct. strat- to me unthinkable It is setting up man egy of defendant design of seek- of straw with the obvious ing destroy rewarded him should based, of his conviction a reversal “mights” and entirely me, seems to

“maybes.” fashioned The law is not prob- gossamer. deals with fabric so possibilities. alone, mere

abilities not" narcotics time when

At a taking bounds, increasing by leaps and frightening health toll of the

such a citizenship, particularly

happiness of the country,6 youth I cannot augmenting

bring myself join staggering

already Gov- burden showing un- as weak ernment convincing I am com- before us. Jacobson, Norristown, Pa., Milton pelled, therefore, dissent. appellant. Henss, Atty.,

Norman C. Asst. S.U. Philadelphia, (Harold Wood, U. Pa. K. Atty., Philadelphia, Pa., brief), S. appellee. MARIS, Before GOODRICH and Judges. McLAUGHLIN, Circuit PER CURIAM. appeal by one of of America UNITED STATES judgment against fendants from a brought by in a suit BARISH, Appellant and David 26(b) Surplus under section Yollin. Lou Property of 1944 as Act amended.1 No. 12395. complaint alleged that the defendants Appeals engaged Court of in a fraudulent scheme for Circuit. Third obtaining purpose for defendant Barish, appellant, certain motor ve- Argued June 1958. hicles from War Administra- Assets 18, 1958.

Decided June tion. The rendered verdict $2,000, favor of the Government provided 26(b) (1) of

sum for in section new trial Act. Motions judgment n. v. were denied. o. appellant’s principal conten appeal is that evidence was sustain the not sufficient to verdict accordingly matter of law. We examined evidence. would serve purpose useful to recite here in dissenting opinion 1. Now U.S.C.A. § of Mr. Justice 489. See Roviaro, page 66 353 U.S. at Clark page seq., seq., 630 et et supra, Indiviglio, 249 F.2d at

Case Details

Case Name: McCoy Gilmore v. United States

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 23, 1958

Citation: 256 F.2d 565

Docket Number: 16996

Court Abbreviation: 5th Cir.