*1 1132 illustrates, foregoing discussion
willingly shipped
product
Virginia.
its
As
into
to-
purposefully
NANA
directed its actions
doing,
purposefully
In so
it
directed its
thereby
Virginia,
establishing
activity
thereby meeting
ward
consti-
Virginia,
tutionally sufficient minimum
requirement
contacts
Virgin-
minimum contacts
for
compelling
that state. No
circumstances
specific
jurisdic-
personal
assertion
ia’s
appropriate
this
make
otherwise
exercise
tion.
personal
jurisdiction unreasonable. The
III.
specific person-
district court’s assertion
established,
Once minimum contacts are
was, therefore,
jurisdiction
al
over NANA
this court must consider whether an asser-
I
dis-
proper. Consequently,
respectfully
personal
tion of
jurisdiction comports with
sent.
“
”
play
‘fair
justice.’
and substantial
Burger King,
(quoting
International v. Washington, Shoe 326 310, 320, 154, 160,
U.S. L.Ed. S.Ct.
(1945)). appropriately Some of the factors analysis Virginia’s
considered in this are adjudicating
interest dispute
Chung’s in obtaining convenient Virginia’s effective rеlief. inter- ensuring
est lies
products
that the
both
supplied to its
are
citizens
not worthless
America, Appellee,
UNITED STATES of
“providing
and in
effective means of re-
McGee,
dress for its residents.”
355 U.S.
PRICE, Appellant.
Frederick Martin
223,
Chung’s
litigating in his home state is obvious. Giv- No. 84-5141. factors, en these personal jur- assertion of Appeals, United States Court Virginia isdiction in appropriate. seems Fourth Circuit. factor, One the burden on NANA de- 10, Argued May 1985. fending Virginia, does tend to undermine Decided the assertion Feb. jurisdiction. Burger See King, 105 S.Ct. at A defendant who Rehearing 20,1986. Denied March has purposefully directed his activities to- Virginia, however, ward “must
compelling person- escape case” in order to jurisdiction.
al at 2185. Mere claims of
distance and properly inconvenience are venue,
handled in a change motion
not a personal jurisdiction. denial of the Supreme Court has
defendants to travel Texas Califor-
nia, McGee, see 355 U.S. at S.Ct. at Florida, Michigan and from see
Burger King, 105 S.Ct. at to defend. similar, although severe, slightly more
сomplaints of distance and travel simply do not rise to the level un-
constitutional burdensomeness. NANA’s
argument is sufficiently compelling to
make an appropriate otherwise assertion of
personal jurisdiction unconstitutional.
of the of the confidential infor- mant, (2) that insufficient was presented at to that the trial establish trail- er belonged Apple and its contents to Lines, carrier, support a common to a con- (3) viction under 18 U.S.C. § there was insufficient evidence conver- Finding argu- sion. first merit Price’s ment, we reverse and remand the case for a new trial.
I. arrest, At Price the time of his was a Lines, Apple truck driver for Inc. South August on Dakota. On orders Lines, picked up a Apple Price load of Val-Agri, company in meat from a meat City, Price’s Garden Kansas. After truck loaded, placed was a wire seal was on the It to be doors of truck. broken only when the load was delivered to the Bereano, (Bruce F. Rasin C. An- Martha Inc., Stores, purchaser, Safeway Land- Md., brief) for napolis, appellant. on over, Safeway’s Maryland, supervi- under Motz, (J. Sale Frederick U.S. Barbara Maryland and sion. Price arrived drove Arnell, Atty., Atty., Wendy P. Asst. U.S. Safeway approximately 4:30 depot at the brief), Baltimore, Md., appellee. on for p.m. August 3. Price had been or 5:00 freeway construction on his delayed due MURNAGHAN, ERVIN and Before route, missed his consequently had SNEEDEN, Judges. Circuit time unload meat. Price scheduled ERVIN, telephoned Apple Lines to inform them Judge: Circuit company in- development, and the appeal for This is an from conviction stop lay him find a truck structed property of the of a common conversion night. Safeway personnel rec- over commerce vio- carrier used interstate go stop a truck ommended that Price 660. Frederick Mar- lation of 18 U.S.C. § Maryland. Price instructed to Jessup, charged in three count tin Price was Safeway at 6:00 a.m. deрot return to the from an interstate indictment theft following morning to the meat. unload of a shipment, converting property Jessup stop, truck carrier, entering proceeded to the breaking Price common secure a vacant room. following at- but was unable to carrier facilities fol- slept night He in his truck. The of meat in tempted sale of truckload Jessup at lowing morning he left 4:30 August 1983. A confidential Safeway depot 4:45 and arrived at the Administration a.m. Drug Enforcement a.m., only to learn leading approximately 5:45 events played a role in the been a misunder- trial, sought apparently had Price there Price’s Prior arrest. Apple dispatch- Lines standing identity informant. between disclosure of the regarding the Safeway personnel er and denied Price’s motion The district court Safeway Price that unloading time. told hearing. A bench trial was held without a a.m., expected not 6:00 they him 4:00 guilty Price was found March result, again Price was unable a.m. As a Price now on count two. conversion Apple He called to deliver load. (1) district court appeals arguing that the Safeway. dispatcher, who contacted Lines refusing erred Although Safeway agreed try to work the difficulties he had trying encountered day, Price in before closed get rid of his load. day.
was not allowed to unload that He There are two versions of what tran- again Apple compa- contacted Lines. The spired after Price met the crabbers and ny agreed put up for night predicament disclosed his to them. DEA *3 hotel. Special Agent William R. Nelson testified Price asked to around locate a reason- at trial that p.m. August at about 4:00 on ably priced hotel that could accommodate he telephone received a call from the infor- rig parking lot. recom- Someone indicating mant crabber that informant Bowie, Holiday Maryland. in mended Inn Rip’s was at company and in the of a truck only Price drove to the hotel to be informed driver who had offered to sell tractor- accept that it the Apple would Line’s trailer full of meat. Nelson told infor- system. Holiday employee credit A Inn mant to remain with the and trucker to call motel, Price “Rip’s” referred to was which approximately p.m., him back. At 4:30 frequented by truckers. Price drove to informant called Nelson and indicated that Rip’s, that but motel also refused honor rig Apple the trucker’s had the name on it. the form credit Price had available to During phone this call Nelson able was him. overhear conversation between the infor- and person. mant an unidentified third It approximately p.m. was now 1:00 engaged a three-way Nelson conversa- Price, August quite afternoon of tion with the two them. He asked the point, again frustrated telephoned informant where from. the meat came Apple Lines. He the company told that he person responded unidentified “driving had day been all around circles” City. mant that it was from Garden Nel- “just he get wanted to some rest was; next son asked how old it the uniden- (JA 219). Apple be able relax.” person tified days indicated that it was two agreed compensate Lines stay- Price for Nelson old. then asked “how much for the ing rig night. with another After mak- meaning truck trailer and beef how much ing parked sure the truck was in a money. response The overheard was it is place, Rip’s safe Price went Restaurant $10,000 (JA worth more but cash will do.” Rip’s lunch then Bar for drinks. 271). Nelson testified that he then “over- spent Price most of rest of August 5 at portion heard of a conversation between bar, leaving purchase price once to low the informant and this unknown individual beer play pool second time with going said the beef ... was [who that] Rip’s patron another at a different bar in go Safeway it was but refused and it vicinity. On at one least of these occa- accepted After tomorrow. deliv- sions, Price did not drive he had because me miles ery take the road to an drinking. airport. And that was the I conversation passing Also day Rip’s at bar was a between informant and overheard Drug confidential En- (JA 272). According unknown individual.” (“DEA”) forcement Administration and a government, this “unknown individu- companion of the informant. men These 4:30 p.m. phone al” involved the call was Maryland identified themselves as crabbers Price.1 simply and were referred to at trial “the contrast, Price testified he left crabbers” because their remains play pool approximately at Rip’s 4:00 undisclosed. Price met the crabbers at Rip’s p.m. Rip’s approxi- and headed back to crabbing and talked about with them. mately p.m. 6:45 Defense conversation, the course of the witness Donald Price related the facts that he was a corroborated Price’s trucker and R. Weaver meat, had a truck load of and Price part. told them of Weaver testified that he person infra, 1. As discussed involved in the no witness tes- unidentified was, personal knowledge telephone tified from conversation. that Price $10,000 Zacur with him p.m. to mant’s truck. had Rip’s approximately 4:00 left pool Rip’s, that the two were at the cash. pool, and When arrived play p.m. 5:00 At that approximately Rip’s until into while Zacur re- hall informant went hall, Price pool left thе but Weaver time five later mained outside. About minutes Consequently, not.2 along came outside back suggest that Price was and Weaver Price Price an unidentified individual. p.m. at the time of the 4:30 Rip’s not at him approached Zacur to tell Agent call to Nelson. phone “some business.” The infor- Za- then introduced Price to Zacur. mant telephoned Apple that he testified him that Price asked whether cur testified in and p.m. Lines at 7:30 and 7:52 cheek purchasing he was the load he could be reached. interested dispatcher tell the how interest, Price, got said off meat. Zacur indicated an but According after by the approached crabbers. phone inspect that he wanted to what he *4 sight other They allegedly led him out of presence In the of the infor- purchasing. proceeded to Rip’s patrons, and then person, Price mant and the unidentified in- him. Price testified that threaten portfolio containing doc- handed a Zacur to him: formant said a describing the load and Polaroid uments anywhere with that going You are not indi- photograph of the load. Zacur then he says ours now and truck. He that’s con- that he wished to examine the cated any- try anything you said do rig proposed tents of the that jeop- says your life will in thing he parking Inn lot to proceed Holiday ardy like this and showed and he went Za- complete Price drove the transaction. something down me he had stuck that Holiday Lines Apple cur in the truck gun to a pants which resembled his separately Inn. The informant drove over me. parked a of the lot out of section Then, Q. happened? what way, alleg- of the truck. On the Price view door to A. me to walk out the He told edly money if he with asked Zacur my truck. he did and dis- reрlied him. Zacur Then, Q. go fifty-dollar ahead? a bills. Subse- played stack if, quently, Price asked after deal compa- A. I out door walked drop him Upon completed, four ny gentlemen. Zacur of these two so Price eight me down the road reaching outside walked over miles gen- he employer car and he said there was another call and indicate that could standing He this is tlemen there. said hijacked. had been gentleman going to take that’s he and Zacur further testified that after your you and I said whatever truck Inn, asked Holiday he Price arrived at man, know, say, yours, I don’t you it's anything if with which Price he had argue with somebody that messes with seal the load. Zacur wire break my life. So— (JA he did not. that Price said testified Q. point, your you At this feel that 97). truck Price had tools danger? life was in pur- have been used which could sir, Yes, did, I some- A. I because (JA 234). Zacur walked over рose. then gentleman and this what intoxicated parked and ob- the informant was where apparently gun. had a him. locks from pair of channel tained (JA 228-29). Zacur, along with According returned he Friel, and intro- Special Agent John FBI Spe- testimony of FBI According to the partner. Zacur Price as his duced Friel to Zacur, infor- Agent DEA cial David M. told to Price and gave the channel locks infor- Rip’s mant and Zacur drove to p.m. re- because he at 5:15 his truck after he returned Weaver also testified that approximately 6:45 pool hall until Rip’s mained at the approximately saw Price in his truck p.m. p.m. have he could not 5:15 Price testified that open apparently converting the truck. property him to Price carri- common commerce, seal but er used in interstate tried break the claimed that he in violation 660; breaking not. then en- could Zаcur broke the seal with U.S.C. § facilities, tering carrier difficulty. entered truck of 18 no He violation arraigned U.S.C. 2117. inspected placed He Price was on Au- the load. then § 30, 1983; gust 73-101). (JA plea entered a under arrest. guilty on all counts. regarding Agent Friel testified the cir- September On Price filed a mo- meeting Price cumstances of his at the tion disclosure of the Holiday Holiday was in Inn Inn. Friel DEA op- informant. Zacur, Price and bar when the informant posed motion, February and on According Friel, at the arrived motel. 1984, the district denied the motion the informant and informant’s unidenti- hearing. without a Under this circuit’s bar, companion into sat fied came down rule that disclosure of re- Friel him and told quired “partici- when the informant is a parking Zacur were the truck. pant” in required the event and not when and, later, left the while mant bar short tipster,” informant is a “mere McLaw- companion the unidentifiеd left as well. Carolina, (4th horn v. North F.2d The informant then returned with Price Cir.1973), the district court found that point and introduced him Friel. At some is not in this instance “[disclosure again left the bar. Friel merely because informant ... was engaged [the] testified that he and Price then *5 tipster led who to the eventual contact be- a conversation in Price indicated which that agents tween FBI the and the defendant.” $10,000. to wished sell his load for Friel (JA 13). informed Price that wanted have the dropped Jersey. load off in New Friel and 6, 1984, right On March Price waived his then parking went into the lot where jury proceeded and the case to trial. (JA waiting Zacur with the truck. government, At request the of the count 110-12, 117-121). three alleging breaking of the indictment entering was dismissed. At the close Price’s testimony differs somewhat from case, government’s of the Price moved for agents. that the of He claims that after judgment acquittal. of The district court crabbers, his during conversation the with granted alleging the motion as count one they allegedly him, which threatened shipment, theft from an interstate and de- crabbers escorted him out truck to his alleging nied the motion as to count two Zacur, him get directed inside. who had of property conversion of a common truck, been outside got with in on evidence, carrier. At the all the close of passenger side. The crabbers instructed guilty the court found Price of conversion Price to do what Zacur said. Price testified on count two. that Zacur Holiday told him to drive to Inn and that way on the Zacur asked to see subsequently filed motion for a portfolio. the truck’s He testified that af- verdict, to set the guilty new trial and aside Inn, Zacur, ter arrived at the Holiday by denied which was district court. informant, not the escorted him into the years, him The сourt then sentenced to two bar to meet Friel.3 ninety suspended. days with all but August
Price was on by appeals indicted Price now his conviction. He grand federal jury argues for the at- district court erred re- tempted fusing compel sale. three count of The indictment charged him of the informant and of his with theft from an interstate denial shipment, 659; prejudicial of 18 motion to disclosure was violation U.S.C. § lapses credibility, possible memory, It is not tell from of other the record wheth- some er Price, as some of factor such Price’s admitted intoxication at inconsistencies lapses Zacur and Friel are due of the time these events occurred.
H37
62, 77
based
tifiable.” Id. at
S.Ct. at
628. Rath-
his defense
his ease because
er,
ar-
entrapment. He further
on duress and
evidence
insufficient
that there was
gues
problem is one
that calls for bal-
the trail-
to establish
at trial
presented
ancing
public
protecting
interest
Lines
Apple
belonged
its
er and
contents
against
the flow of information
the indi-
of
insufficient
that there was
right
prepare
vidual’s
defense.
truck,
meat to
trailer and
of the
conversion
proper
non-
Whether a
balance renders
on count two.
support
conviction
depend
disclosure erroneous must
case,
particular circumstances of each
II.
taking into consideration the crime
States, 353 U.S.
v. United
Roviaro
defenses,
charged,
possible
possi-
(1957),
Su
tradiction
might
or
have
The court found that the infor
execution.
upon petitioner’s knowledge
borne
a “material witness who could
mant was
package might
contents of the
or
have
directly
knowledge”
testify
personal
entrapment.
tended to
an
show
which
regarding the crimes with
the de
charged. Consequently,
Id. The
reversed
was
Court
the conviction and fendant
“his
order to
remanded the case to the district court. Id.
was mandated in
accom
purpose
at
plish
630.
of a criminal trial —find
S.Ct. at
alleged
price
Price named his
7. The court held
to be
at
ing the truth.”
sides,
informant,
through the
agreed.
in both
participant
is a
that where
clearly
par-
The informant was
an “active
is not
a defendant
enterprise,
a criminal
episode
ticipant” in this
under McLawhom.
of his or her need
proof
present
required to
Further,
agent
because
Nelson did not
re
testimony. Such a
informant’s
for the
identity
alleged
know
trucker
unjustifiable
“place an
quirement would
conversation,
during
phone
the infor-
defense,” particularly where
burden on
partner8
only
are the
witness-
mant and his
perpe
alleged entrapment is contrived
was,
testify
as to whether Price
es
can
the informant.
Id. McLawhom
by
trated
negotiations.
party
Cf.
often have
recognized that informants
also
Rovario,
1141
Roviaro,
Supreme
the
and the
remanded
Court noted
is reversed
case
viction
purpose
privilege
the
the
behind
of
trial.11
newa
pro-
is the furtherance and
nondisclosure
AND REMANDED.
REVERSED
public
of the
effective
tection
59,
at
77
enforcement. 353 U.S.
S.Ct.
law
SNEEDEN,
Judge, dissenting:
Circuit
privilege
The
noted that this
at 627.
Court
majority’s
respectfully
I
dissent
the
60,
at
limited. Id.
drug transported agents he to the to federal package traveling Finally, tо the the informant was location er’s car. Id. which the truck its other than defendant contents were to only person, be sold. The controvert, himself, explain participate or did could informant not negotia- report police Instead, who tions for the actual a officer sale. amplify the defend- on a conversation between ant Price identified eavesdropped Agent himself F.B.I. and the informant which Zacur as the driver truck of a loaded defendant with inquired the informant to the The directed meat. defendant whether accused Za- drug officer, truck, pickup. buy The site cur wanted to trailer and car, $10,000. of the informant’s for Responding, hidden in the trunk contents Zacur inspection reported that he observed the defend- indicated that if an verified car, tree, pick description walk cargo, ant exit from to a Price’s of the truck’s car, $10,000 return up package, deposit purchase price agree- would be Price, package agent however, and had heard the defendant ad- able. The told nearby vise the informant he would call him in must occur sale at a hotel. days. couple U.S. at S.Ct. The confidential informant traveled to at 626. The informant’s in Rovi- the hotel and introduced to another highly aro thus material and relevant. agent whom he federal described as Za- The facts of case also associate. McLawhorn cur’s The informant did not ride indicate that of the confiden- hotel with Price Zacur. The infor- involvement, critically tial important practical to mant’s all pur- The poses, point. Although defendant. informant in McLaw- ended at this working police hom was with a detective premises, was on hotel the confidential drug investigation. an undеrcover present informant was not when Price opened F.2d at 3. The informant told the detective the truck door display trailer’s cargo the defendant was in- McLawhorn to Zacur. Nor was the informant drug trafficking present agents volved and offered to when the arrested Price. arrange a sale. cocaine Id. The informant not even witness spotted later driving positioned McLawhorn car and the crime. He was in front of signaled stop. Following Price, him to a brief the hotel restaurant while Zacur and conversation, the informant introduced the the truck were located behind the restau- Thus, potential detective to McLawhorn as a cus- rant. since the confidential infor- The negotiated play tomer. did not a mant a material role in the Then, gram sale of one of cocaine. accord- consummation the crime сonversion ing testimony, present to the detective’s McLaw- and was when crime was drug committed, clearly horn sold the to both distinguish- case is informant. Id. McLawhorn was later able from Roviaro and McLawhorn. illegal charged transportation, posses- with facts in this are The much more sion and of a drug. sale narcotic analogous to those found our recent The informant’s role thus McLawhorn decision United States (4th Cir.1984). testimony highly made his relevant. Brinkman drug deal, negotiated informant set we held the district did not price actually participated denying its sale abuse discretion in the disclo- cocaine. informant’s role sure of the and location of a case was far limited. Id. at 981. more informant. Brink- violating confidential informant’s involvement here convicted of man was Extor- Act,1 alerting consisted of Credit federal authorities to tionate Transaction and the problems the fact truck bar Travel His that a driver in a an- Interstate Act.2 unhappy sell shipment, nounced he would intro- the law stemmed from busi- 894(a)(1). § 1. 18 U.S.C. U.S.C. § 2. 18 *11 then, Following Brinkman Kane. Id. court with Manual ness venture require wished decline to that Brinkman should release of F.B.I. learned Id. at 979. Kane. a hit man beat informant’s name. hire arranged for a confidential Agents Price not cite does Brinkman his The informant meet Brinkman. mant to majority acknowledges the brief. The ex- undercover an introduced Brinkman six istence the decision footnote but a hitman. Id. agent as who was described distinguish attempt not the case. I does agent where to find told the Brinkman point believe Brinkman is on and control- pay- him to ensure to beat Kane and how ling. may present assert that the Critics $5,000 agent debt. The ment distinguishable entrapment case is because Brinkman that he collect- later nоtified alleged here but were and duress are not Brinkman was arrested after ed the debt. However, in the Brinkman case. issues attempting to the “hitman” for his pay is a distinction without a difference. services. merely baldly has asserted that he assessing the role of the confidential than entrapped. allega- was More mere Brinkman, this court conclud- forthcoming must be to force tions participation in the ed that the informant’s confidential release a informant’s name. disclosure of his iden- case did not warrant Smith, See United States tity: (court Cir.1985)(en banc) (4th requires however, face, a in which We situation speculation more than mere on usefulness informant, Nails, falls somewhere identity). disclosure of informant’s Oth- tipster of a mere between role erwise, privilege confidentiality That participant the offense. that of a automatically uрon be lost inclu- tipster” a is more than “mere Nails was complaint. sion certain statements that he had im- clear from the fact two Furthermore, although he articulated Brinkman, portant discussions with es- support his more facts to defense du- Brinkman wanted a hit tablished that ress, trial Price failed convince the man, Brinkman to Hart- and introduced illegal forced into sale. hand, equally it is man. On other testimony on the issue The defendant’s “partici- inappropriate to label Nails inherently suspicious. He admitted that he offense; pant” in the the crux of the weapon displayed by men never saw a later, government’s came from the him. Price allegedly threatened never between Hartman recorded discussions trucking dispatch- to his mentioned threats to which Nails was not gave testimony over inconsistent er party. or threats came before after whether the hand, at 981. In the case at F.2d dispatcher.3 Further- his last call than confidential informant was also more more, although he stated that he was tipster yet participant in the less than earlier, Price returned to threatened there the F.B.I. offense. informant alerted traveling to another bar to Rip’s bar after public defendant’s announcement This pool shoot darts. behavior play cargo. rig to sell his and its that he wished with the assertion that inconsistent Furthermore, the informant introduced Rip’s. threatened at felt life was government agents posing buy- Price to opportunity The district court had However, key negotiations for the ers. all the witnesses credibility judge of the truck and its were sale contents Judge Ramsey including defendant. agent solely the defendant and between allegations of not believe Price’s Moreover, chosе Zacur. could entrapment. The informant’s hardly participant illegal duress be labeled a issues was therefore on these he was not conversion since court, working This from a required. criminal occurrence. not witness actual Appendix 143-44. 3. Joint record, attempt
cold should not to second
guess the trier of fact. Clearly, the record
demonstrates that the district court did not refusing
abuse its discretion in require
disclosure of the informant’s fol-
lowing allegations allegations bald sup-
ported by conflicting testimony and behav-
ior that belies the defendant’s assertions.4 conclusion, my I restate belief that
Roviaro McLawkorn are distinguish-
able and do not disclosure of the
informant’s identity when he does not set participate Instead, in the crime.
Brinkman dictates that when an infor-
mant’s involvement does not rise to the participating crime,
level of in a his name
need not be revealed. I majori- believe the
ty thus erred in reversing the trial court’s keep
decision to this information confiden-
tial. I therefore respectfully dissent. ROBINSON, Appellant,
John H. HECKLER,
Margaret Secretary M. Department of Health and Services, Appellee.
Human
No. 85-1639. Appeals,
United States Court of
Fourth Circuit. 2,
Argued Dec. 1985.
Decided Feb.
1986.
It is within a trial
Soles,
court’s discretion to
(2nd
deter-
Cir.1973).
482 F.2d
Fur-
mine
whether the
thermore,
of an informer is
disclosure is not
unless the
likely to be relevant to the trial of an accused.
trial court determines that an informer’s testi-
Roviaro,
9;