Lead Opinion
Pеdro Morell and Ramon Bruzon were convicted by a jury of conspiracy to distribute cocaine and of possession of cocaine with intent to distribute.
Valdez testified that in April 1972 a man named “Louie” introduced him to Morell and Bruzon as “two guys” in the cocaine business. “Louie”, it turns out, was actually an undercover government informant. Bruzon and Morell told Valdez that they were expecting a shipment of cocaine to arrive shortly from Columbia. They gave Valdez the address of a store in Queens where they kept supplies used in their painting business. Over the course of the next few weeks Valdez visited the store four or five times, and Bruzon and Morell were present on each occasion.
On May 23, 1972, Bruzon called Valdez and told him that the cocaine had arrived. They met on the evening of May
At 2:00 P.M. Valdez met Agent McElroy of the BNDD, with whom Valdez had maintained regular contact, and told McElroy the details of the proposed deal. Shortly thereafter, agents supplied Valdez with $48,000 in government funds, which were placed in the trunk of Valdez’ car. It was agreed that when Valdez came out of the store and removed the mоney, it would signify to observing agents that he had seen the cocaine.
Valdez arrived at the store at 4:20 P.M. He was greeted by Morell who took him to the basement where Bruzon was cutting the cocaine and mixing it with dextrose. Valdez and Morell left the store, and Valdez went to his parked car and removed the money from the trunk — the signal that he had seen the cocaine. Morell and Valdez were followed back into the store by agents, who arrested Morell and pretended to arrest Valdez. Valdez said “God damn”, a prearranged signal that the cocaine was in the basement. Agent Jeffrey Scharlatt went down to the basement. He observed Bruzon exiting through a back door where agents stationed at the back of the store effected the arrest. On his way back upstairs, Scharlatt saw plastic bags containing white powder on the floor. The bags were seized and on analysis were found to contain cocaine.
In addition to presenting character witnesses, both Bruzon and Morell took the stand in their own defense. They testified that they rented part of the store from Urbano Ramos, assertedly a friend of Valdez who operated a fruit stand on the premises. Their story was that Valdez had come to the store on May 25 looking for Ramos, who was not there. The inference they sought to have the jury draw from their story was that Valdez and/or Ramos were dealing in cocaine and had placed it in the store without knowledge of Bruzon or Morell. According to them, they were innocent of any cocaine dealing, and Valdez had set up their arrest by BNDD agents in order to imрrove his record as an informant.
I.
On September 29, 1972, the appellants made a written motion that included a request for “information which is favorable to the defense . . . , including matters which might or could motivate testimony by persons whom the Government intends to call during the course of the trial, including acts of misconduct committed by said persons. . . . ” (A.7 — 8) The government consented to this application, but no documentary material relating to Valdez was made available to the defense. Then during Morell’s and Bruzon’s first trial, which resulted in a mistrial, thе government brought out on direct examination the fact of Valdez’ 1970 guilty plea in Florida for possession of cocaine, his sentence to probation, and his work for the government as a paid informant. Defense counsel also cross-examined Valdez on these matters.
Prior to the second trial, the defense made a more specific request for information relating to “the arrest record of Valdez, . . . the deal in Florida, [and] his deal with McElroy, the agent. . ” (A.288). The Assistant United States Attorney in charge of the case responded: “I made total disclosure of anything to do with his testimony. I turned over all 3500 materials. His arrest, his life was brought in front of the jury. We have no arrest record in our possession and the incident took place two years ago.” As a consequence, no additional material was turned over by the government.
This appeal was scheduled to be argued during the week of December 16, 1974. In a letter to this court dated December 11, 1974, the United States Attorney’s office disclosed that in preparing the appeal, it had for thе first time discovered the existence of a confi
The additional material turned over revealed the following facts unknown to the defense at the time of trial and deemed by the appellants to be pertinent: (1) that Valdez was sentenced to three years probation on May 18, 1972, only a week before the arrests in this case, and not in 1970 or 1971 as Valdez had indicated at trial;
The district court did not hold an evidentiary hearing on the failure of the government to turn over these materials earlier. The court did receive letters from the parties on the effect of the material and whether a new trial should be ordered. It also heard oral argument on the matter.
The district court was fully aware of decisions of this court elaborating on the propriety of granting a new trial when the government failed to disclose, as required by Brady v. Maryland,
Furthermore, our cases establish that in cases of deliberate suppression, “prophylactic considerations”, designed to deter future prosecutorial misconduct are of overriding importance. Grant v. Alldredge, supra,
On the other hand, we are not persuaded that the evidence contained in the confidential file is so material that a new trial is called for if the failure to disclose was merely negligent or inadvertent. There was ample ammunition for attacking Valdez’ credibility. Although the particulars of Valdez’ background as revealed in the file were not detailed, the jury was apprised of his earlier guilty plea, sentence to probation, and continued cooperation with the government as a paid informant, including a payment of $1500 in connection with this case.
The significance of the timing of the sentence and the probation condition of continued cooperation with the government, are largely negated by the fact that Valdez’ contacts with Morell and Bruzon and discussions of a possible cocaine sale began in April 1972, several weeks before the sentencing. Furthermore, it is not clear that Valdez was even aware of the condition. He testified that he knew of no condition, and nothing in the confidential file contradicts that statement. No mention of such a condition was made during the sentencing proceedings and such a stipulation was not made a part of the record, although the sentencing judge apparently at sоme point told a BNDD agent that he would put it in writing if that became necessary.
Finally, even if the trial judge were to allow a wide-ranging cross-examination into the details of Valdez’ previous cases, which seems doubtful, the fact that Valdez’ modus operandi differed in this case from his prior ones would at least be counterbalanced by the evidence that Valdez had established a strong record as a reliable and productive informant.
It should be added that there is presently no indication that anyone in the United States Attorney’s Office was aware of the confidential file prior to trial. The immediate disclosure of its evidence to this court on December 11, 1974, negates any such inference. The same cannot be said for Agent McElroy, however. He was the individual who supervised Valdez and in that capacity maintained the confidential file on him. While the prosecutor cannot be charged with the failure to produce information in the possession of any government official, in this case it seems fair to view McElroy as an arm of the prosecutor. Cf. Giglio v. United States,
II.
After a hearing, the district court denied a defense motion to suppress the cocaine seized by government agents at the time of the arrests. The appellants raise two objections relating to the seizure. They contend first that the government was required to secure a warrant before entering the premises and second, that the agents failed to comply with 18 U.S.C. § 3109
It is not disputed that once inside the apartment Agent Scharlatt discovered the cocaine in plain view as he was returning upstairs from the basement. However, the appellants contend that the “plain view” exception to the warrant requirement is inapplicable in this case because the discovery of the heroin was not inadvertent, as the plurality opinion in Coolidge v. New Hampshire,
The purpose of the entry was to arrest those whom the agents had probable cause to believe were in illegal possession of narcotics. The seizure was amply justified by the fact that the contraband was right in front of the defendants, and within their easy reach.
Likewise, here the principal motive of the agents was to arrest Morell and Bruzon, whom “Louie” had described to Valdez as being in the cocaine business. Because of the signаl given by Valdez, the agents were reasonably certain that cocaine was on the premises, but so also were the police in Artieri aware that there was heroin in Gonzales’ residence. Before making the arrests of Morell and Bruzon, the agents were entitled to wait until such time as events had proceeded to the point where the agents could be reasonably certain that the available evidence would ultimately support a conviction. This seems to us to have been simply a matter of good рolice practice.
The second issue relating to the entry into the store advanced by the appellants has to do with whether the agents complied with 18 U.S.C. § 3109, which requires federal officers to announce their purpose and authority prior to breaking open a door. See, e. g., Sabbath v. United States,
III.
We find no merit in the appellants’ other contentions. They argue that the prosecution’s summation was testimonial in nature and improper in that it told the jury that Valdez came from Central America to testify voluntarily, without threat or promise, or under compulsion by the government. However,- the prosecutor was merely drawing inferences from the evidence adduced at trial, and we find no error in the statement. See United States v. Dibrizzi,
The trial judge also did not rule improperly in refusing to compel the government to disclose the identity and whereabouts of “Louie.” While the government’s privilege to refuse to disclose the identity of informants is not absolute, the question of disclosure involves “balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Roviaro v. United States,
For the foregoing reasons this case is remanded to the district court for the purpose of holding an evidentiary hearing to enable it to make the findings of fact and conclusions outlined in parts I and II of this opinion.
Notes
. Bruzon and Morell were tried from March 5 to March 7, 1974. An earlier triаl had ended in a mistrial on March 4 after it was discovered that some of the jurors had read a newspaper article about the government’s use of informers.
. As requested by defense counsel, we have reviewed the confidential file in its entirety and have found no information favorable to the appellants other than what was turned over by the government.
. The trial transcript does not indicate that Valdez’ testimony on this point was intentionally false. Valdez expressed uncertainty about his sentencing date and only when рressed by defense counsel stated that he thought the sentence was imposed about a year after his plea. (A.356 — 57).
. The confidential file indicates that the payment of $1500 was “for services rendered.” (S.A. 32). Valdez testified that the $1500 included his expenses for working on the case, but a review of his testimony does not show that he stated that the entire amount was for expenses. (A.351-52).
. The statute provides:
The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.
Concurrence Opinion
(concurring and dissenting):
Although it is always hard to object to a remand for further development of the facts, I see no occasion for a second remand with respect to the Government’s failure to disclose evidence in its possession in regard to its chief witness, Valdez. The undisputed facts compel a conclusion that the non-disclosure was culрable and not “merely negligent or inadvertent.” While Giglio v. United States,
Apart from fairness to defendants, we are having to devote far too much in scarce judicial resources to determining the consequences of failures to furnish Brady material. See United States v. Sperling, supra,
We should also make it clear that there is no merit in so much of the Governmеnt’s argument concerning 18 U.S.C. § 3109 as turns on Valdez’ presence inside the store. United States v. Bradley,
I would reverse for a new trial, to be preceded by a suppression hearing on the issue of compliance with 18 U.S.C. § 3109. I concur in other portions of the court’s opinion.