United States v. Teodoro Ariza-Ibarra, United States of America v. Alvaro Rodriguez
651 F.2d 2
1st Cir.
1981
Check Treatment

*3 BOWNES, and Before CAMPBELL Cir operatives. undercover KEETON, Judges, Judge.* cuit District 605 F.2d at 1218-19. prosecution’s The at the second KEETON, Judge. District respects in identical to trial was all relevant Following by ordered this new trial I, in id. at 1219-20. summarized Ariza Ariza-Ibarra, court in 605 United States We state case (1st 1979) (“Ariza I”), F.2d de 1216 Cir. testimony of largely dependent was on the (“Ariza”) fendants Teodoro Ariza-Ibarra who, agent Jorge, Fortunato the DEA Rodriguez (“Rodriguez”) and Alvaro were an informant named Alberto along with again of by jury conspiracy convicted negotiated (“Larain”), Larain Maestre 50,000 marijuana and import pounds of drugs from the de- agreement purchase kilos of cocaine into the from Colombia alleged con- fendants that constituted of 21 violation U.S.C. that he spiracy. Jorge At testified 952(a), we are appeal, 963. On this §§ Larain in Novem- learned about Ariza from required open to address an issue left thereafter, the two men Shortly ber 1977. n.3, I, concerning Ariza 605 F.2d at 1219-20 Ariza, calls to began telephone a series of scope government’s duty under placed taped by which were States, Roviaro v. United taped con- evidence at trial. None of the (1957), and United L.Ed.2d 639 any express included reference to versations v. Davila 496 F.2d 378 Instead, “[gjuarded ref- drugs. there were 1974), defendant with ac provide a erences to ‘coffee’ and ‘furniture’ [which] concerning

curate the where words for other well been cover could have abouts of a confidential informant. so substances, and the conversations suggest illicit deliberately cryptic as to the case re- government’s theory dealings.” ordinary rather than commercial as in mained the at the second trial same Id. at 1219. Ariza I: addition, Jorge Ariza testified portrayed by prosecution, As meetings with the de- drugs, several face-to-face supplier was a Colombia-based * Massachusetts, sitting by des- theOf District of ignation. defendants, Larain were

fendants, which both he and will inform later reached agreement 29, 1979, where an was present, present than November [of] assistance, Ariza, Rodriguez’ with transcript status of its informant.” No kilos of co- the men with 25 supply magis- pretrial conference before the 50,000 marijuana. pounds caine and However, parties trate is in the record. with the meetings None of the face-to-face conference, de- dispute do true was recorded. As was defendants wished fense counsel announced that I, Jorge’s at the second trial Ariza “[i]t interview and the Assistant said at of what defendants Larain responded that Attorney unrecorded, later, provided meetings longer informant no active its case.” Id.1 basic was. he did not know where Larain was not called as a Rodriguez’ December attor- On trial. government or the at either York, was then wrote to *4 ney, who in New second Appellants argue that at the case, in the prosecutor charge the duty the violated its under government matters, pretrial including discuss various to furnish by failing Davila Williams Larain’s whereabouts: the with information con- defense accurate In the event that have been unable you or to cerning the informant’s whereabouts appreciate in- to locate we would diligence under the cir- exercise reasonable you in this formation behalf and addition, they cumstances to locate him. When we make it available to us. last deliberately government assert the in Magistrate before the appeared the concerning Larain’s withheld information case, instant Larain represented Finally, argue whereabouts. appellants longer in of the Drug was no the service denying in the district court erred and that Enforcement Administration his instruc- for a you. If whereabouts were unknown evaluating To set the tion. context for ap- we would changed, this situation has contentions, appellants’ pro- the we describe course, you. from hearing preciate, during the ceedings occurring before and the U.S. Attor- by This letter was received second trial in some detail. ney’s on December office San Juan 1979. II. the de- government The did not furnish THE A. PROCEEDINGS BEFORE concerning La- fense with SECOND TRIAL whereabouts, to either response rain’s the I, 30, 1979, September On in Ariza this or defense coun- magistrate’s memorandum and court reversed defendants’ convictions 10, 1979, letter, before the sel’s December

remanded the case for On a new trial. on which the trial commenced. date second 21, 1979, November conference pretrial B. THE HEARING Petrozziello Magistrate held before Simonpietri 10, 1979, impaneling December after Attorney which an Assistant On United States recessed the trial jury, and In the the district court Rodriguez’ lawyer present.2 conference, the admissibility on the dated memorandum and convened made 27,1979, reported allegedly by November magistrate the of certain statements agreed that “it was co-con- purported the Government two of the defendants’ capacity government’s Rodriguez storage enlarge 1. The remainder of the the ship, Wendy was circumstantial. testified Two witnesses B. arrest, concerning the Ariza defendants’ $5,000,000 was found in cashier’s checks for counsel Both defendants retained new attorney his shoe. Two other Rodriguez’ witnesses described new made second trial. frequency large volume and cash transac- appearance conference on his first at a status tions in Ariza’s bank the time account around filed a 1979. Ariza’s trial counsel October alleged conspiracy Finally, was hatched. petition on November written admission two witnesses described modifications ordered Petrozziello, moiety relating claim million spirators. $5 1977).3 The also court at the time of his arrest had 548 F.2d 20 found on Ariza agency. Larain’s been Siebert up the issue of denied agreed to take Larain to the Internal Revenue hearing.4 Petrozziello told to refer availability at funds, Service, had and which seized hearing began, After the sign have Larain was instructed to several doc- counsel with furnished defense accepting compensation agreement movements bearing on Larain’s uments memorandum, dated granted. The second and between the first period 24, 1979, check for January requisitioned a of the hear- the first second trial. On $13,080.97 Larain in care to be forwarded to counsel a ing, gave prosecutor of Siebert. DEA by copy prepared of a memorandum first Agent Jorge was the September Juan in group supervisor San hear- witness at the Petrozziello being that Larain was which indicated concerning ing. testifying length After “deactivated,” e., from active i. removed conspiracy between the defendants September 1978 re- informant status. declarants, Jorge was hearsay one of the April report made port reference to an questioned by When defense coun- on Larain’s activities. direct, tes- Larain’s whereabouts. On it, requested prosecutor sel stated that worked with tified that he had last had not been able to locate earlier, although year about one day, prosecutor The next report. a half two and had last seen Larain about in which produced April report, *5 at a he testified day months before the DEA three in- group supervisor described Larain at a restaurant meeting arranged by had worked. vestigations on which Larain Juan, in near the Federal Courthouse San indicated that the con- report “[s]ince where he Jorge had not asked Larain investigations, clusion of the above [Larain] living at that time. and his have relocated themselves in family the United The author indicated States.”5 last address he Jorge indicated that the that Larain would remain on active status in the apartment had for Larain was an and maintain contact to initiate additional Carolina, in Puerto Rico. Laguna Gardens drug cases. lived at the Jorge stated that Larain had during address before and Laguna Gardens addition, In on the of the second had furnished the first and that he hearing, given copies defendants were of in the first that address to defense counsel two DEA memoranda Larain’s hearing, Jorge said that proceeding. At the moiety arising claims out of the case. The recently telephoned apartment he had memorandum, 2, 1979, January first dated answer- and was informed a woman who by Siebert, Special informed Ronald lived there. longer ed that Larain no office, Juan Agent-in-Charge of DEA’s San cross-examination, compensation Jorge that Larain’s claim for stated During belonging any of a boat to that Larain had never testified respect to the seizure men had the two Rodriguez granted, had been but that his the several cases on which ment,” Ciampaglia, is] In 628 F.2d and “whether United States v. [the 1980), (1st withholding present final 637-38 Cir. we held that a whereabouts.” fact ruling yet Petrozziello should not be made until re- had not been a formal Because there close of all the evidence. See also United request quest for a sub- Patterson, 644 F.2d 890 poena, in- or a for a 1981). free, A district court remains how struction, why the record does not make clear ever, hearing purpose to hold an earlier for the ques- on these the district court heard evidence Ciampag making ruling. a conditional hearing. tions at the Petrozziello lia, 628 F.2d & n.3. indicates that 5. The evidence received at trial hearing, during 4. At various the dis- times permanently in the relocated Larain had trict evi- court indicated that it was 11-13, pp. infra. United States. See dence to determine is availa- “whether [Larain] equally govem- ble as to the [the defense] Following testimony, established that al- The defense Siebert’s district worked. promised Larain that court ruled counsel had known though Jorge had that defense required testify be Larain would never “not existence of infor investiga- of his arising from one of the trial mant. .. of the address infor [but] tions, had told Larain that Then, reading from United mant.” after depending on him would avoid Turbide, States v. n.6 in its cases. (2d Cir.), denied, cert. (1977),(“[A] 54 L.Ed.2d 293 defendant addition, Jorge although In testified that who knows show that he the informer must

he by had been asked Assistant United attempt has made a to locate him diligent he whether knew Larain’s Attorney ”), the before relief court will be ordered... whereabouts, had never been instructed he found that case the defense in the instant According Jorge, locate Larain. showing required had not made Tur one phone Laguna call to the Gardens bide. apartment Jorge’s only effort to constituted find Larain.6 attorney stated response, Rodriguez’ first learned that current defense counsel At the conclusion given to that Larain’s had been address evidence, called defendants Siebert during attorneys Jorge’s previous defense government’s knowledge on the issue of the hearing. testimony at the PetrozzieUo He whereabouts. Siebert testified Larain’s on stated that had relied what defendants or four he had last seen three note)7 we (erroneously, he characterized months earlier an accidental encoun- I, in Ariza lobby finding ter in the of the Condado of this Court exchanged pleasantries, Inn. men The two not been furnished with predecessors had attempt but did not to find out Siebert point, At that court address. living working. where Larain was then ruled that had not defense counsel have made shown effort that what Siebert’s efforts- contact ... haven’t estab- agents to locate Larain is somewhat [Larain] made lished ... any evidence point, At one contradictory. stated that your impeded any way *6 Jorge’s has telephone Laguna call to the Gar- effort in find Mr. ... attempt trying dens such apartment was the thereafter, does not Shortly before me show which he was aware. [T]he Jorge government any knowledge he was had that the has Siebert testified that sure where he is telephoned previous any Larain’s address “sev- more do as to than eral now. times.” trial, hearing, testify government the not have a statement that At the PetrozzieUo stipulated Jorge’s questions government’s efforts find Larain raises the in- as to single telephone limited to the capabilities were call tentions under Roviaro. As Laguna apartment. event, any Gardens we a new trial must be held in do rights not decide-whether defendants’ under 7. Footnote 3 in Ariza I states: any way implicated. Roviaro trial, point during At one the after defense apparent from the Id. at 1216-17. It is text of objected testimony the counsel had about finding this footnote concerning made no that this Court said, Larain and amine that “We are entitled to cross-ex- government had fur- whether the fellow,” said, prosecutor “You nished Larain’s address to defense counsel at subpoena can defense counsel then said there was no him.” The record shows that attorneys the first from trial. We note different “Where?” and argued trial defense counsel de- response. govern- While the appeal fendants’ in Ariza I. address, produce ment did not then although We note one of de- also required as it would have been to do under U.S. attorneys fense trial was seated from the first States, Roviaro v. United S.Ct. trial, in the courtroom the second de- (1957), response 1 L.Ed.2d 639 whether he fendants to ask declined to call him proper request by defendant, to a no there is given during the first had been trial, Larain’s address indication that the ever ex- defense made an testimony they would his because stated plicit request. argument At oral in this ambiguous be the issue. court, government represented that it had understanding with Larain that he would court, pressed de- questioning by

After close defense counsel on his efforts to defense Larain, stated, fense counsel conceded that find “I have no need “[t]he has no efforts whatsoever to look made Nobody to locate him. has told me that I government’s confidential informant try.”9 have to locate him or even far as this record concerned.” testimony Immediately after his was recess, counsel made Following a None of the completed, Jorge was excused. that the their first on the record provided witnesses government’s six other Larain.8 government be ordered to Larain’s where- any Assistant The court then asked abouts. if knew where Larain Attorney familiar The defense five witnesses called that he prosecutor responded was. The Rodriguez’s with Ariza’s and business inter- thereafter, not. the court conclud- Shortly ests, trav- why about Ariza would testify ed that: large money, why el with amounts me, on the record before I rule [B]ased ordered modifications on one Rodriguez had [Larain], can see and if defense] [the ships. morning of his of December On government any knowledge has as to trial, 19, 1979, eighth day they where he is will make it available to defense announced that it call defense, ... counsel for the so can Jorge’s testimony to rebut concern- Siebert make arrangements they whatever feel ing efforts to learn of proper. are However, before Larain’s address. Siebert response the prosecutor stated that began prolonged to testify, there was a “my agent continue to find out where [will] ar- sidebar conference at which defendants he is... government is aware of its [T]he gued place to be allowed to they ought is, find continuing duty, if where he govern- before the jury evidence that inform counsel for the defense.” agree- comply ment had failed to magistrate. Rely- ment it made before the THE TRIAL C. SECOND Turbide, ing again once on United States statements, opening After that because supra, the district court ruled Agent Jorge called as its first the defendants known of Larain since had cross, Jorge’s testimony witness. On con- before the first and had not made cerning Larain similar to substantially effort to locate given hearing. at the Petrozziello obligation attempt under no to locate agent repeated that he had him. told Larain that the would not depend on his but that it could testimony, thereafter, Shortly the court recessed guarantee that Larain would not be recess, Quiles, trial for lunch. After the *7 required to testify. At he added that Attorney, Assistant an- he had informed the Assistant United break, during attorney the nounced that of Attorney understanding. this visiting who was his office on other matters that he had

Jorge repeated prior testimony prosecutor also had informed the that he had made no efforts to find Larain seen Larain two weeks earlier at the Conda- by visiting tracing or do called the El previous Holiday nightclub address Inn in a However, the compensation checks. Lounge. According Casanova to the attor- produced, 8. Defendants’ counsel stated that: And if we would re- he is not quest missing-witness charge. a position It is the infor- defendant’s that the mant ... is not in the hands the of defense. Siebert’s 9. This statement contradicted speak We wish to with him. that We believe hearing that he statement at the Petrozziello prosecution knows, the or knew where Larain, by agents Sie- had asked his to find was; every he that he inis sense... under subsequent had at trial that he bert’s control, we, point, their and at this still wish informant, Jorge instructed to find the view, course, speak to with him... with a of agent prosecutor’s representation the that his to call him as a witness for the defense. would “continue to find out where he is....” and was had told nightclub, Jorge owned the him that he had ney, Larain visited fur- using prosecutor name. The his own apartment Larain’s former and talked with counsel with informa- nished defense this guard.11 a were they tion from them that and learned defense was The last witness for the Jus- Holiday also the Inn. staying at Condado Arenas, the Assistant States At- requested picture then a Defense counsel argued govern- who of the torney on behalf prosecutor the offered to Larain. After At conclusion ment in Ariza I.12 the recent provide photograph the most testimony, Arenas’ recessed the the court find,10 he could asked informant the court counsel, trial, informing go- “I am defense counsel, satisfy you?” “Does defense that ing give you opportunity search attorney responded, “Certainly, Ariza’s tonight in the same gentleman for this Judge, get.” we have all we can where place... staying.” are The then called Agent defense Siebert. next opening At the day, of trial agent’s testimony the trial differed defense counsel the court informed from at the given Petrozziello gone Holiday had Inn the Condado First, significant respects. two at trial previous evening. to look for Larain the that he Larain had Siebert testified knew a the desk reported that had They person had Holiday a show at the nightly Condado managed told them Larain had Inn six past that had disbanded within the nightclub, Inn. nightclub at the At the Second, agent months. stated that dur- Larain attorneys were informed that had ing their accidental at the Holi- encounter not been connected the establishment Inn, was then Larain had stated that he months. then talked for some Counsel hotel. working at the restaurant, who employees of hotel’s addition, con- questioned Siebert was go to called suggested they a restaurant cerning government’s efforts to find At the Pepe. Pepe, attorneys Don Don Contradicting Jorge’s testimony, Larain. visited usually told that Larain Siebert stated that about two months earli- or each week restaurant three four times er, find the Jorge he had instructed previous been there and had Jorge informant. Siebert indicated Defense informed court week. counsel told agent telephoned him that had Pepe waited at for “two the Don times and apartment Larain’s numerous hours,” appear. not or did three Inn “tried” the as well. move for a The defendants did not con- thereafter, sidebar Shortly during a brief time give tinuance to them additional conference, after prosecutor stated that They search for informant. I, copy he called Sie- receiving Ariza missing ar- request subpoena bert and asked him to determine rest warrant to secure the again whereabouts. Defense counsel Instead, renewing to find him. pressed on what had assistance Siebert efforts for a witness instruc- made to find Larain. In addition telephone calls, tion, argued counsel fact Siebert stated argument govern- appeal, Quiles Arenas he would At oral on that said check picture represented for a current the infor- that the had an under ment’s flies mant. The and Larain had attended prosecutor standing also revealed that with Larain that the informant I, high together testify school Ariza have to at trial. See give picture n.7, and offered to supra. defense counsel At 1219-20 n.3 F.2d at *8 year- high in Larain contained his school he had second Arenas that an testified book. agreement impression that was an that there testify, that not but Larain would impression have to subject on conflicts Siebert’s this any upon not statement was based Jorge’s testimony with him find no one had told agent by Jorge any or or DEA made other Larain, any- to he had not done Attorney’s of the Office. member U.S. thing to find the informant other than once calling Laguna apartment, and the Gardens government’s stipulation same effect. only “twenty-two just it had taken them Mr. Larain is as available to the de- he spot Larain at a where place

minutes” to fense as he is to the government ...13 frequent proved was a visitor and denied the for a wit- no real effort to government had made ness instruction. addition, they con- locate informant. Following ruling, parties this made failure to men- tended that Siebert’s closing arguments. Both defendants hearing that tion at the Petrozziello argued nega- draw a jury should nightly show had been connected with a government’s tive from the fail- inference govern- that the Inn indicated agreement ure produce and its intentionally ment had withheld relevant on his testi- rely with the informant not to Finally, information from defense counsel. rebuttal, ex- mony. In its following:

the defense stated the Larain be- plained that it had not called Every person spoke yesterday we paid cause was a informant with a crimi- [Larain], pleasant and Alberto no one credibility nal would have record whose whispered They things his name. told us questioned been on the stand. Honor, easy. about him.... Your it was ruling, In its court first district noted III. there was no in the record Appellants’ argument is that hold- first pretrial that at the conference the defend- ing to estab- required that defendants requested ants had to do lish that had made some effort to find anything more than on report Larain’s cur- compel the informant it would before Then, rent status. defense coun- accepting him, government to locate the district court representations concerning sel’s what had standard, by rea- applied legal an incorrect true, happened night before as the court son of reverse their which this court should stated: convictions. We have observed that “the statement of two- counsel [T]he [is] government’s respect produc- duty edged sword it demonstrates to because informant, distinguished from tion of an effort, me that there was some [if] informant, duty merely its name the much, I very say, Mr. Larain Diaz, easily stated.” United States can or could located by have been 1976) (emphasis have to they certainly defense and didn’t is United original). leading case on rely yes- the information received in which supra, States v. Davila terday. popu- But Mr. Larain is [if] [as] this court declared that: be, lar as he seems to it seem then would Roviaro government’s duty under [T]he to me that with some minor effort he produce requires names and addresses could have been located. or at it to correct information had offered Noting diligence that the defense evi- reasona- least to have exercised dence on Ariza’s to locate the explain sizeable wealth ble under the circumstances why go he had million in cashier’s checks on How far must informer.... $5 arrested, for, of, informer person keep when he was the court track or search stated; depends stated that the defendants could have af- easily is less and, investigator, including forded to hire an because factors the extent many witness, government’s Larain’s name and last whereabouts were control over known, subpoenaed importance could have located and of the witness’s testimo- him, finding the informant a material witness sought ny, difficulty arrest accept warrant from the court. On the similar matters. We do not flat it, informer evidence before court found “that of all requiring production rule finding, light government’s agreement 13. In so not to call the court stated that open prepared involvement three cases that he Larain as its witness and the fact longer DEA was in- insufficient to establish that the no an active informant. control, formant was in

11 government government’s duty respect pro- has the with witnesses whenever the before on their names trial.... informant dependent not disclosed duction of an “is disappear or be- factors, But should an informer extent of among several them the defense, we witness, unavailable to the come the control the the compel government, upon would the testimony, and importance witness’ demand, to locate him or timely finding witness.” difficulty showing satisfactory an affirmative Diaz, make F.2d at supra, United v. 535 reasonably court why Boria, to the it could 134. In v. DeJesus United States of its diligence be to do so and expected that (1st 1975), F.2d we stated Cir. disappearance. as generally regards that Davila “made it clear Williams non-usable bare of a name and furnishing (citations at 382 omitted and em- if, reasona- address not suffice with might supplied). phasis could locate diligence, ble the Government that, by no at least dispute There is had Where the defendant informer.” hearing, of the Petrozziello commencement address, searched requested the informant’s requested govern- the defendants had him, moved unsuccessfully for and then with Larain’s address provide ment to them government pro- requiring an order the time the second trial. The him, govern- “the duce we concluded that so, claiming did do government doing ment’s flat refusal even to consider no longer Larain was an active informant with counsel providing more [than that his whereabouts were un- and current meet did not non-usable ... address] Instead, hear- known. at the Petrozziello also Williams’standards.” Id. United concerning the infor- ing, testified Nutile, F.2d States v. where, Laguna apartment, mant’s Gardens 1977) (Where was unable government “the admitted, longer was no agent Larain identify the whereabouts accurately to addition, describ- living. Agent Siebert light its we ... inquirefd] informer ... ed an accidental with the infor- encounter to the of ... supra, Davila mant that had some months place taken [him].”) efforts to locate adequacy of its Holiday Inn.14 The earlier at the Condado DEA testimony, and the memoran- agents’ the La telephone one call to Jorge’s deactivation, his “re- da only gov guna apartment Gardens is mainland, on the and his moiety location” as to Larain ernmental effort locate claims, given constituted all the record.15 evidence in the which there is clear at or defendants not, not, and could does hearing might before the Petrozziello single dili contend call constitutes have reasonably aided them had locate the informant. See gent effort to search sought to for Larain. On the basis Nutile, F.2d at supra, v. information, finding pre- of this and a Moreover, despite prosecutor’s 703-04. given vious defense been counsel had the Pe the conclusion of representation at Laguna Gardens at the earlier address agent that his hearing trozziello ruled, relying the district court is,” to find out where “continue [Larain] Turbide, that the supra, defend- five later Agent days Jorge testified ants knew were therefore not locate that I have to has told me “[n]obody entitled to assistance in locat- Thus, even after try.” or even [L]arain ing him because had not made to locate obligation had assumed effort to find him. not instruct informant, government need to do is inconsistent ruling partner The district Larain’s former court’s our so. conclusion in Davila Williams testimony concerning other 14. Siebert’s at the Petrozziel- 15. Siebert’s failure to disclose attempts by Jorge agents other to find lo had had a show at the hearsay nightclub part contradicted in the are are Inn discussed informant IV, supra. Jorge’s testimony. See infra. n. own *10 12 noted, listed in Davila Wil- As

Applying factors the district court although the case, defendants introduced indicating we would be liams to the facts of this man with Ariza is a considerable convictions were compelled to reverse the wealth, investigator they did not hire an we not were in no appellants convinced that search for the informant. Cf. United government’s failure way prejudiced by Boria, supra, States v. DeJesus 518 F.2d at showing to search for Larain. Rather than (in 371 which the defendant moved for an testimony of the in- desired appointment investigator of an to aid him formant, through- conduct defense counsel’s in finding informant). They never at out the trial “suggests strongly [they] informant, tempted subpoena see error,” grounds desired for reversible cf. Russo, 1152, United States v. 540 F.2d Bonilla, 1262, United v. 615 F.2d (1st Cir.), denied, 1154-55 cert. (9th 1264 1980) obtaining or for a miss- 1000, 529, (1976), 97 50 L.Ed.2d 611 S.Ct. ing instruction, cf. v. requiring obtain bench warrant Davila 496 F.2d at supra, 382-83. trial, presence to secure his Fera, 590, see 597 United States v. 616 F.2d Throughout pretrial maneuvering (1st Cir.), denied, 969, 446 100 cert. U.S. case, this appellants formally request- never (1980). Through 64 L.Ed.2d 830 S.Ct. ed the government its infor- proceedings, out the defendants never made so, mant. they finally When on the an offer of how Larain’s proof third day the Petrozziello con- case. United testimony might aid their See ducted after the second trial had com- Boria, supra, States v. DeJesus 518 F.2d at menced, in the next very sentence defense counsel renewed their request missing for a Finally, on the ninth after 8, supra. witness instruction. n. As we Inn and visiting the Condado Diaz, supra, stated United 535 Pepe determining Don restaurant n.5, F.2d at request for such an “[t]he frequented the latter several times instruction sometimes indicates that de- week, each defense counsel informed the fense exploit- counsel is more interested in easy court how it was to obtain ing the witness’s him seeing absence than Yet, although they possessed about Larain. produced.” Appellants’ complete failure to the district information that caused court take any actions consistent with a sincere find that with some effort defendants could obtaining interest the informant’s testi- informant, locate the defense counsel did conclude, mony leads us to as the district them to not seek a continuance to allow concluded,16 court apparently that their ob- Larain. United press their search for Cf. jective throughout proceedings was not Williams, supra; States v. Davila to obtain but to obtain a Haldeman, (D.C. States v. tactical advantage appeal at trial and on denied, Cir.1976), cert. U.S. Instead, from his (1977). absence. 53 L.Ed.2d 250 Shortly case, you really Appeals before of the Petroz- the conclusion I am not so sure hearing, following exchange ziello place: took want to locate him. speak I would love to [Defense Counsel]: him, Honor, Your we and I think that THE COURT: is a man whose [Larain] delighted have certain evidence I would be you years name have known for two give I it to the Court that think that Larain you whose address have known for some seriously would be confront- concerned with time.... haven’t indicated to [Y]ou ing appeared Your Honor if he here. As a effort, you [y]ou Court have made fact, Honor, only matter of Your Larain could trying haven’t shown one iota of effort ... input lessen the case .. . locate him. ..., witness, Honor, okay, because if he was valuable Your let [Defense Counsel]: you government certainly me ask ... would have this— THE him COURT: As here. a matter of fact believe, know what this statement constitutes the nearest leads me to ... This last thing proof’ concerning leads me to ing how believe not this hear- to an “offer of [from] testify but from what I read of the Court Larain would if called. A. for a renewed simply *11 learning of La- After instruction. above, defendants first As we have stated there Pepe, the Don frequent visits to rain’s made their interest known that, diligence, with some no indication is pretrial whereabouts at the conference be- the located could not have defense counsel 21, on November magistrate fore the Russo, informant. See time, prosecutor the told defense At that aof 1155. In the absence supra, 540 F.2d at that he did not know Larain’s ad- counsel that Larain’s showing credible them of Larain’s agreed dress and inform case, id. see helpful appellants’ would be Decem- by status November 1979. On believe that supra, we do not and n. 3, 1979, wrote to the ber defense counsel with a new rewarding tactics appellants’ to be informed if Larain’s prosecutor asking the “fun- trial would either serve or honor of fairness” that requirements damental That letter whereabouts became known. designed were Roviaro and Davila Williams by prosecutor was the on Thurs- received States, supra, to foster. Roviaro v. United government day, 1979. The December at 627. at 77 S.Ct. U.S. any with infor- supply defendants Monday, concerning mation Larain until IV. 10,1979, day of the trial. December the first is founded Appellants’ second contention facts as the first but essentially the same makes a aWhen defendant legal con- theory. asserts a different Their concerning informant’s for information an charges against is the de- tention that the whereabouts, government the should com be dismissed because the fendants should a promptly, privilege unless it asserts ply and mis- government deliberately withheld so. Roviaro v. under Roviaro not do concerning La- characterized information 59-62,17 States, at supra, of their rain’s whereabouts in violation of the light In clear indi S.Ct. at 627-628. substance, right process. appel- to due might an availability cation that Larain’s be lants’ miscon- allegations prosecutorial trial, I, 605 F.2d issue at new see Ariza First, despite duct are threefold: their trial, n.3, impending at 1219-20 and the withheld pretrial requests, government responding de government’s delay defendants all Roviaro information from constitute request does not Second, at fendants’ until the first trial. hearing, Agent the Petrozziello Siebert prompt compliance. recently failed to disclose that Larain had possessed Siebert Although Special Holiday Inn. working been at the Condado knowledge relevant to Larain’s where- Third, hearing,- at the Petrozziello him as abouts, did not call government charac-

government misled defendants hearing. at Petrozziello its witness apartment as terizing Laguna Gardens defense, re- Siebert When called last known address when informant’s with Larain his accidental encounter vealed concerning his more recent Inn some months Holiday at the Condado We examine whereabouts was available. before, suggesting a and made reference claims before underlying the facts these contacts knowledge of the informant’s some addressing consequences govern- However, at the hotel.18 ment’s conduct. brief, lege government suggests providing La- from 17. In its had been rain’s whereabouts. there was evidence that a “contract” placed Agent Jorge on the life of before case, exchange hearing, following trial in this During first result his actions proper- prosecution and that therefore the place: took ly safety its concerned with the informant. you Jorge may Q. Other than what think note, however, We did not that the done, any other know have that efforts make references the contract on by anybody to Mr. made locate trial, any privi- the second and did not assert past years? Larain within the two indicated, agent never as he later would misconduct for the intentional nightly had had show that Larain ly falsify to withhold or the Roviaro infor at the Inn or the informant mation.” 496 F.2d at 382. Our later deci had told him meeting chance sions have made it clear that in each in working that he was at the hotel. allegation stance where an of such behavior made, the court must If, determine whether requested by defendant informant, to produce “the repre Government’s conduct so seeks to locating thrust burden of the hensible as to reversal in necessitate our *12 defense, witness very on the at the least it supervisory capacity there [whether] or.... obligation has an the defendant supply might was such prejudice appellant might reasonably all information that otherwise reversal.” United require helpful be in the search. Because Larain’s Boria, v. DeJesus F.2d at 373. supra, 535 business Holiday involvement with the Inn Houghton, See United v. 554 F.2d was likely to to fresh information lead con 1219, denied, (1st Cir.), 1223-25 cert. 434 whereabouts, cerning his failure to Siebert’s 851, 98 164, 54 (1977). U.S. 120 S.Ct. L.Ed.2d reveal this fact at the Petrozzieilo obligation. constituted a breach of this by appellants, Unlike cases cited Citing Boria, United States v. DeJesus here government did not remove its supra, in appellants argue that furnishing jurisdiction, informant from defendants with Larain’s “last known ad- Calzada, (7th States v. 579 F.2d 1362 dress” the mischaracterized the denied, 920, 99 Cir.), cert. U.S. information possession concerning in its La- (1978); v. L.Ed.2d rain’s argument whereabouts. This is with- Mendez-Rodriguez, (9th Boria, out merit. prosecu- In DeJesus 1971), prohibit or otherwise the witness gave tion the defense what it described as Texas, Washington from v. testifying. See “last informant’s known address” some 87 S.Ct. 18 L.Ed.2d 1019 time after a had government agent taken (1967). govern We do not condone the jurisdiction. him to airport to leave the case, ment’s misconduct in this but we do Rejecting finding the district court’s appropriate not consider a dismissal to be in prosecution’s disclosure had been ade- showing prejudice absence of some we quate, “[fjurnishing stated that the in- by the defendants. See United States implied former’s ‘last known address’ Boria, supra. DeJesus furnishing the Government was its most current about informer’s next issue of preju We turn Id., whereabouts.” 518 F.2d at 372. In the case, dice: In present citing govern case, instant testified agreement rely ment’s Larain’s address, concerning Laguna Gardens testimony sug and the DEA memorandum clearly longer stated that Larain no lived had gesting that the informant moved to Thus, Boria, there. unlike DeJesus here the mainland, argue appellants that as a represent did not that the ad- for Larain result its failure to search dress it supplied to the defendants was cur- information in a supply rent. the Roviaro time manner,

ly affirmatively “the Government B. denied to the infor appellants access complicitous In United mant in clearly States v. Davila ... [and] supra, we be unavailability.” Appellants stated serious Brief for “[i]t [his] by telephone previ- testimony A. light Other than to his In of Siebert’s at trial that he address, Inn, checking Holiday ous home other than at the knew Larain had worked at the Inn, no, why Condado I don’t. is hard to understand this statement did you passed memory jar Yet when saw him Q. Siebert’s Larain’s provoke go, right? time of and let him is that association with the hotel or further exchanged questioning by pur- A. We a few who comments and defense counsel it, yes. portedly finding that was the size of intent on the informant. V, in However, part government” as is the district court discussed failing give weight defense counsel sufficient infra, which erred the ease with leading relationship with the de- were able to obtain information termining visited the informant avail- frequently whether them to a restaurant Johnson, we held able In the in- to both sides. contention Larain rebuts their time of the that: at the was unavailable formant prosecutorial miscon- to be de- availability trial. Where witness’s is not [a]

second presence of a availability affecting physical duct the basis of cided on prej- claim of weighing accessibility by is or his proved, court the court room corpus by subpoe- take into account writ of habeas may appropriately udice legal obtaining practical and relevant evi- na.... witness’s difficulty [A] But, availability is to be determined on the assessing the likelihood dence. relationship disposition also take into basis of his prejudice, court must parties.... the court pur- of effort to toward the Where account a defendant’s lack complete clearly finds that an uncalled witness light sue known leads. par- one of the favorably disposed toward absence of evidence that *13 instruction, ties, requested, may if to defendants and helpful would be draw jury may any given efforts con- be properly their failure to undertake par- the other infor- an inference favorable to sistent with a desire to locate the mant, that no the bias III, supra, ty.... we hold those cases where part see is not witness disposition resulted from of an uncalled prejudice to the defendants ascertained, failure to in this to be “the misconduct case. able against produce open is to an inference strength of parties, particular V. both against depending either the inference argument is that Appellants’ final deleted.) (Emphasis the circumstances.” denying their the district court erred 288, (3d at 171 Wigmore 2 on Evidence § instruction. missing for a 1940). ed. defendants contends that omitted). See United (citations Id. charge the court’s and at 890 object failed to 681, (1st 684 v. 573 F.2d Wright, this court’s review appeal that therefore on States denied, 949, 98 S.Ct. Cir.), determining whether cert. should be limited to (1978). our 2857, 792 Because request. Fed. 56 L.Ed.2d “plain deny error” to “disposi regarding 30, v. Tho in Johnson States statement R.Crim.P. See United appear to be in mann, 1979). (1st may We tion” of the witness 609 F.2d 565 Cir. opin subsequent language with appel that on the record before us19 conflict agree “availabili that a witness’ suggesting of the ab ions lants’ contention fails because feasibility of objection charge ty” solely sence of an to the is determined trial, United testimony at obtaining his “plain it was their failure show 135, n.5, Diaz, at missing witness instruc v. 535 F.2d give error” not to a at 496 F.2d v. appellants’ con States Davila tion. We conclude that missing wit grounds we examine the rationale on other rejected tention must be detail. instructions some ness as well. satisfactory a Johnson, 467 F.2d In the absence Citing United States v. to call a denied, party fails explanation, 410 1972), cert. U.S. 804 Cir. ordinarily party would (1973), witness whom that 963, 35 270 L.Ed.2d by the witness known if the facts produce former sta argue that Larain’s appellants jury may party, the to that that “he were favorable suggests paid tus informant testimony absent witness’s infer that expected to favor undoubtedly be objections to the argument appellants represented made that defendants instructions At oral given by timely objection court. the district that there had been a However, charge. not the record does show party. would have been adverse even in the of any showing absence Wigmore, See 2 Evidence 285-88 §§ predisposition party. witness’s toward the (Chadbourn 1979). rev. This adverse infer- Johnson, United States v. F.2d drawn, reasonably ence be how- may (8th 1977). Typically, what is re- ever, unless the shows that ferred to as “missing “an absent witness” or testify witness is available to on behalf of witness” instruction deals “con- only with party, of the witness trol,” See, “predisposition.” g., e. noncumulative, would be relevant and Blackmar, Jury E. Devitt & C. Federal prejudiced the witness against is not (3d Practice and Instructions 17.19 ed. § the nonproducing Id. party. Because 1977);20 Federal Jury Criminal Instructions occasion for drawing such an inference (1980). of the Seventh 3.25 Circuit § parties arises when both have failed call witness, a material jury if the is to attrib- Although orally defendants re negative ute consequences par- one quested a sev “missing witness instruction” ty’s so, failure to do it must determine not, eral times the parties which of to be likely withhold- orally writing, or in set forth the ing damaging Thus, testimony. jury language of proposed their instruction.21 may draw an party inference adverse to a Throughout the discussions toward whom the witness is “favor- request, repeatedly argued defendants ably disposed,” because the party would govern informant remained be normally expected produce such control, ment’s that because of the witness, Johnson, see United su- prosecution’s efforts meager pra, 809; F.2d United States v. him, the district court should find that La- Wright, supra, addition, 684. In *14 rain was less to the than available defense the jury may draw an adverse inference government. Defendants never ar produce when a party fails to a material gued jurors the should be instructed witness who is peculiarly available to that they may draw inference an adverse party. Williams, United States v. Davila that, the from the fact as a supra, Diaz, supra. United States v. 2See informant, likely former was to be Larain C. Wright, Procedure, Federal Practice & favorably disposed prosecut toward the Criminal 489 (1969). As § Johnson makes perhaps ion22 doing because so have clear, party’s a ability produce a witness undermined their the contention dependent is often on predis- the witness’s government’s produce failure to him result position However, toward party. III, prejudice ed in defense. part the See party a having exclusive control over a In relevant, supra. light witness who of dominant connota provide could non- the tion testimony produce “missing cumulative of witness” instructions as fails the witness, is permissible to draw referring only an adverse to a call a party’s failure to so, inference from party’s control, failure to do material witness in its the de- 17.19. request § ABSENCEOF WITNESS 21. The defendants file a for addi- setting specific tional instructions forth lan- peculiarly power If it is within the of guage on reasonable doubt. prosecution the or the defense to a give testimony witness who could material case, closings, repeatedly on issue in an the 22. In their failure to call that defendants ar- may give gued, objection by witness an without rise to inference that his the or testimony ty. However, court, par- would be jury unfavorable to that instruction that the should negative no govern- such conclusion should be draw a inference from by you regard drawn is to a who witness ment’s failure to Larain as witness. call its equally parties, available to both or where materially appel- That did so undercuts merely the witness’s would be argument missing lants’ that the denial of a cumulative. deprived witness instruction them an infer- of jury always will bear in mind that ence favorable to the defense. imposes law never on a defendant in a crimi- duty nal calling any case the burden or of producing any witnesses or evidence. request hearing, a a specific failure to make ziello Siebert had chance fendants’ Larain, finding Inn with concerning an instruction a encounter at the for witness, we conclude disposition of the he had a nightly who told him that had for an instruction concern- working that no was still show the hotel and missing wit- of ing predisposition obviously information could there. Such court. There- ness was made to district have facilitated the search for but fore, the district court question whether government agent dissimulated and did witness given missing in- should have knowledge not reveal the full extent his solely whether Larain struction turns on hearing. This was the Petrozziello control. instance Government’s it made to the breaching obligation an not. On the We conclude that he was Petrozziello court. At conclusion trial, during argument last hearing, prosecutor promised that instruction, find where agent continue to out “would emphasized counsel the ease with which represen- this days is.” Five after [Larain] had been able to obtain tation, one Agent Jorge testified no Larain’s whereabouts try or even had told him find Larain Pepe preceding visit to the Don indicates, Moreover, do as the record so. evening. 10, supra. light In pp. telephone Government made but one above and the absence of our discussion apartment hardly call to the informant’s with the anyone evidence that connected — to secure information assiduous effort to find prosecution either knew where La- to his whereabouts. attempted or had to interfere with rain ability testimony, defendants’ to obtain notes, Williams, majority In Davila as the we conclude that the district court did not mis- we stated that would be serious “[i]t concluding err either intentionally to conduct for the parties or in fail- equally available to both informa- falsify withhold or the Roviaro ing give missing witness instruction. v. Davila tion.” United States 1974). my Affirmed. view, here the tactics of the Government BOWNES, Judge (dissenting). Circuit While this constitute “serious misconduct.” *15 how yet precisely court has not determined opinion ably fully The and sets majority go keep track far the Government “must But pertinent cases. I forth facts informer,” 382, at of, for, id. at or search an court, accept cannot its As a we result. duty requires prosecution’s a minimum the preserve integrity at of must all times “produce it correct legal system. our cannot sanction or We diligence reasonable least have exercised appear improper to condone deceitful and in- to locate the under the circumstances conduct the Government. Government, as the ma- former.” Id. The opinion A of reading majority fair concedes, satisfy the mandate jority did not can lead to but one conclusion: Govern- Roviaro; of accurate and it did furnish ment The facts make egregiously. behaved the defendant and complete information to clear easily it the Government could defendant’s comply promptly failed to with have commitment to the complied its the informant’s where- regarding inform magistrate that it “will the defend- abouts. ants, 29, 1979, by not later than November com- it would be majority of The states that present status its informant.” [of] were it ignore agree- pelled Not its to reverse the convictions blithely it ment, still, prej- had suffered appellants worse relevant infor- convinced that withheld effect, My colleagues, in balance mation. before the Petroz- udice.1 Some months failing showing My have made defense could such fault defense for brethren deprived opportunity of the show helpful would have been how Larain’s majority specu- The how the informant. to defendants. It is not clear to me interview 18 governmental

two misconduct Berger States, 78, 88, v. United 55 factors — 629, 633, preju- counsel’s failure to show (1935). S.Ct. 79 L.Ed. 1314 Those give weight dice—and words still greater ring latter. true and should apply to all engaged government those service. This I shifting of the focus from the Govern- believe that the Government’s conduct was ment’s misconduct to the tactics of defense so improper require as to that we dismiss counsel puts position condoning us in the the indictment in our super- the exercise of I Government’s actions. assume that visory powers, see United v. DeJesus States agree at some majority Boria, (1st 1975). 518 F.2d 373 Cir. point governmental misconduct cannot be regardless tolerated or excused of the ac- ON MOTION FOR REHEARING is, Drawing tions of the defendant. the line In their petition rehearing, appellants course, arguable matter. I believe contend that the Court misread United Government, represents which us Williams, (1st States v. Davila 496 F.2d 378 all, reproach should strive to be beyond 1974), Cir. and United v. DeJesus States expect conduct of a prosecution; less Boria, 1975), 518 F.2d 368 de damages the legal sinews of our structure. clining to reverse defendants’ convictions in me, For the issue is not whether defense resulting absence of any prejudice from counsel failed prejudice; to show the crit- misconduct before and question ical is how the Government acted. Contrary the second trial. to appel agents repositories are lants’ assertion that the examination of public worthy trust and must be of prejudice Boria oc conducted in DeJesus it. They rigorous should conform to a stan- simply curred governmental because the dard of probity. Nearly a half-century ago, misconduct opin was committed before our the Supreme Court examined the duties of ion in Davila in DeJesus Boria the prosecutor and declared: Court question turned to the whether “the The United is the Attorney rep- Government’s conduct was such as to de resentative not of an ordinary party to a prive defendant of trial or a fair else was so controversy, sovereignty but of a whose reprehensible as to require setting aside the obligation to govern impartially is as exercise of its after supervisory powers,” compelling obligation govern expressing as its its “to unwillingness say that in all; interest, therefore, every disappearance whose instance of pre-trial assistance, even with prosecution criminal not that it shall case, win a Government must forfeit a conviction.” justice but that shall be done. such, F.2d at 373. also United As he is in a peculiar and very Houghton, (1st Cir.), definite law, sense the servant denied, cert. U.S. twofold aim guilt of which is that shall (1977), L.Ed.2d 120 which the Court ad not escape or may innocence suffer. He question dressed “the of whether there was prosecute with vigor earnestness and —in- *16 govern such deliberate misconduct deed, But, he should do so. while he may prejudice ment and to the defendant as to blows, strike hard he is not at liberty to warrant dismissal of the indictment.” strike foul ones. It is his duty as much refrain improper from methods calculated Moreover, appellants’ assertion that wrongful conviction as it is government’s precluded misconduct them every to use legitimate bring means to interviewing establishing from Larain and just one. prejudiced by his absence seriously lates that the defense was not sume inter- too much about defense counsel’s cun- searching sought ested in ning. present, for but rather The failure of the defense to grounds Speculation orally writing, language for reversible error. is an or in of their enterprise, proposed “missing uncertain and for I that reason think witness” instruction and to object unwise to make too much of it. Defense to the omission of it from the court’s behavior, however, counsel’s charge hardly suggests could be inter- astuteness or skillful preted differently. My colleagues may pre- tactics. concept facts and both the misconstrues opin- in the Court’s articulated prejudice complete fail- light “(appellants’ In

ion. with a take actions consistent

ure to informant’s obtaining interest

sincere testimony,” concluded the Court appellants had “that not established informant was unavailable Id., at 15

time of the second trial.” Thus, appellants original).

(emphasis in prejudice because

failed to establish unavailability

failed show second trial.

testify at the rehearing denied. petition HAMPERS, Appellant. Joyce re L.

No. 81-1159. Appeals,

United States Court

First Circuit.

Argued April May

Decided *17 Gen., Smith, Atty. A. Asst.

Barbara H. Div., Boston, Mass., Chief, Appellate Crim.