United States v. Walter E. Ferguson, United States of America v. Walter Edward Ferguson

* аgreement bargaining collective applicable in areas to be considered by express pro governed specifically view agreement. This

visions reasonable, entirely the cor as was could

ollary Board the Joint view that good put forward conscience request for or a under the contract claim

arbitration. to consider

,We occasion na- plaintiff’s of a claim

whether entitled that would have

ture sup- evidence jury substantial adduced.

port of the claim had been

Affirmed. of America

UNITED STATES FERGUSON, Appellant.

Walter E.

UNITED STATES of America FERGUSON, Appellant.

Walter Edward 72-1369,

Nos. 72-1370. Appeals,

United States District of Columbia Circuit.

Argued April 13, 1973. April

Decided April 16,

As Amended

Rehearing July 17, En Banc Denied Denied Oct.

Certiorari

See 95 S.Ct. 183. * employee Agreement “No shall suffer of this reduction her as a result or salary, change working conditions, 318). (A. adverse . .” enjoyed by loss of benefit now identify pro- promise its and

fulfill alleged- informant who duce at trial the ap- ly purchased from the the narcotics second, pellant, whether the and lant was denied his importance issues of lesser Of are missing witness instruction and sen- tencing. August 27, 1969,

On a District Co grand jury in lumbia handed down having charging appellant dictment with drug indi sold a to “a certain narcotic vidual” in “on the District of Columbia May 20, 1969,” about violation Septem the federal narcotics laws.1 On arraigned 12, 1969, appellant ber placed Appellant’s and on re bоnd. disciplinary tained counsel encountered shortly problems and became unavailable commencing prepare this case for and on December appointed trial court other counsel represent appellant. April 2, On appellant retained new counsel and the appointed thereafter court relieved counsel. grand jury On June Larimer, Atty., David G. Asst. U. S. Maryland handed District down Titus, Jr.,

with whom Harold H. U. S. charging appellant ten-count indictment Atty., Terry, John A. and Asst. U. S. individual, alia, inter with and another Atty., brief, appellee. were on the similar violations of the narcot- federal Washington, George Driesen, B. D. C. alleged laws to have occurred ics (appointed by Court), appellant. Maryland May on 1969. After the warrant, appellant issuance a bench BAZELON, Judge, Before Chief arraigned finally arrested and later GASCH,* WILKEY, Judge, Circuit the United States District Court Judge District United States Maryland the District of on November for the District Court 6, 1970. District of Columbia. 19, 1970, appellant’s On November Judge: GASCH, Maryland District counsel filed a motion to proceedings transfer the to the District appellant’s convic- This case involves January 20, On Columbia. tion for under sale of narcotics government requested a on the 4704(a), 4705(a), C. and U.S.C. § §§ motion, May 14, pending on questions, Appellant 174. four raises held in Baltimore conference was status principal here: two of which issues are Judge Miller, After James R. Jr. first, whether the trial court erred obtaining of his codefend- the consent dismissing the indictments ant, request filed another grounds government failed to * charged § a violation of 26 U.S.C. Sitting by pursuant count two 4704(a) ; designation 28 U.S.C. charged a viola 292(a). three count § § tion of U.S.C. Specifically, count one 4705(a) ; charged § a violation 26 U.S.C. jurisdic- proceedings jury transfer to this was committed and the government agreed trial commenced on tion. November request, convicted, pellant’s аnd the fed- sentenced proceeding years on eral transferred March to five one, years the District of Columbia on June count two to ten on count two, years and five on count three each of the two indictments. Count one July 22, 1971, the court held On below of the District Columbia indictment appellant’s dis- motion to consecutively was to run to count one identity close the informant’s and his Maryland indictment. two the Counts motion to dismiss for want of a respective indictments three government time, trial. At that the re- concurrently were to run with count one sisted disclosure of informant’s iden- the of the indictments. arguing tity, prior that such disclosure endanger safety. to trial would The I. government, court ruled in favor the identity noting that if informant’s the Relying primarily on Roviaro were revealed at that it would cer- time 353 U.S. tainly survival. argues decrease chances for appellant (1957), 1 L.Ed.2d 639 Appellant’s for want motion to dismiss that committed reversible thе trial court of a trial was also denied. dismissing error indictments the ground government in on the that the 15, 1971, appellant On October and his during formant, present the who was arraigned codefendant were on the transaction, was not available transferred case and the two cases Roviaro, In for the trial this case.2 consolidated for trial. On October Supreme under the that Court decided 1971, a bench warrant was issued for withholding circumstances, the certain appellant. On November the identity fail of an informant’s and his government ready announced that it was testify ure to at trial could result proceed on the District of Columbia grave prejudice defendant such indictment, but stated it had that lost that be dis the case must informant, contact the with whose iden- emphasized fact missed. The the tity government Court was then revealed. The only be such a determination can probably indicated that he would not be respeсt of each made with to the facts testify. available then particular case: moved to dismiss the The indictment. court below denied the motion to dis- that no fixed rule with We believe miss, appellant’s and further denied respect justifiable. to disclosure is motion newed of a dismiss ‍‌‌​‌‌‌‌‌‌‌​‌​​‌​‌​​​‌​​​‌​​‌​‌​‌​‌​​‌‌‌​​‌​‌​​​​‍for want problem for is one calls bal- speedy trial. ancing bench warrant protect- public the interest later executed on against November the flow of information 2. The dissent misun- contends that we have present trial; would not have been at revealing derstood the issue. the identi- probably But informant been elimi- would have ty step of the informant govern- to enable So, nated sooner. the fact appellant (1) identify either the infor- to obtain ment did not the informant testimony trial, mant’s at disappeared incident to which informant identify counsel trial, meaningless. would seek to government interview did reconstruct the informant in time relatiоnship mind the and con- dealings, any, in- reconstruct his with perhaps tacts with the offer formant and to his own evidence of testimony parties parties third as to and of third the trial on relationship lant’s point, with In power the informant. if he desired. no There was case, revealing identity infor- government either or the helped mant earlier would testimony not have have obtained the informant’s pellant get trial, the informant’s —the matter when the identi- informant’s power ty had no infor- to detain the was revealed. protect mant or him. The informant still government throughout prepare his refused

the individual’s identity proper balance disclose the the informant. Whether defense. government Here, represented must erroneous renders nondisclosure appear particular circum- depend taking government case, into con- as witness of each stances pos- being charged, the that his the crime withheld sideration signifi- sаfety. Here, days defenses, possible reasons of his ten sible testimony, re informer’s did cance of the veal the of the informant and other relevant factors. disclosed further 77 S.Ct. at 628. with had lost touch the sit him. Unlike reviewing totality the cir Roviaro, uation in did begin must cumstances throughout not refuse this information circumstances that caused those the course of The record fur the trial. to be reversed. of Roviaro conviction government ther reveals the engaged in a narcotics had Roviaro planned the to call informant at trial as during informant, with an transaction prior a witness. This it had done in Chicago lay police se officer which in cases which this informant had been informant’s in the trunk of the creted government suggest of assistance. The ed, witness car. There were immediate ruled, and that it the District Court although sale, federal two to the es unnecessary inappropriate to agents police ob оfficer and a second identity prior disclose the to informant’s Thus, in the from a distance. served undoubtedly jeop trial because it would setting integral part of an formant was ardize life.5 the informant’s Consider that, crime,3 up found the the Court ing need for a continu witnesses, was of other in the absence ing flow of on the narcotics information means which traffic, perils the obvious inherent in entrapment any possible explore could dangerous the narcotics traffic6 and the government. by the played by an role we find us now before The facts that the lower court’s determination distinguish most it from Roviaro. The postpone time significant Roviaro disclosure until of in distinction is that This distin- 1972. Brown was 623. October S.Ct. U.S. robbery during guishes in from killed the course of a bank Roviaro the case bar and identity April 18, involving withholding of New York on cases persons merely pointed out informant who experienced trial 6. The conscientious policе observation involved in narcotics (Aubrey during judge Jr.), Robinson, E. Illinois, McCray apprehension. July ob- course of L.Ed.2d 62 pages transcript: served at 8-9 of the court’s “THE COURT: It has been this involving experience particular area narcotics, informers, disclose just identity be had the informer’s would 5. The reveals that executing been That has same as him. in “Taniillo-Jaekson testified earlier experience conspiracy that wherev- court: the violence case” and due to gov- involved, er informers have been it in with that that occurred connection great go required ernment has been about was not unreasonable to be concerned lengths protect physical their lives It welfare of informant. trial, during trial, expected the' to be noted that one those Hailes, where witness, “Popeye” This court has heard Charles gunned steps has executions there people been deliberate home. See down of his 71-1446; Brown, traffic. involved the narcotics v. Mace Nos. United 72-1029, required No, will not be con- in which killer was the hired identity degree the informer to disclose the These victed of first murder. gov- date peals trial as the this case such time were dismissed on motion February rath- has been set —until the date of to the ernment on due escape er.” D. Jail Brown from C. provide procedures safeguard unreasonable cir- was not under the for the The dissent indicates that held cumstances. such Jencks material and produced proce future unless such Tantillo- informant as a witness dures were established so that discover conspiracy might preserved, Jackson it should able evidence be sanc explanation why it tions for offered an as nondisclosure will be invoked. spirit says, Bryant, his The would have been unsafe disclose the dissent identity prior expected applied clearly to should to the time distin guishable It call him this сase. seems clear situation with which target that if an informant is the group of one is confronted in the instant case. We case, disagree. safeguard thing

of narcotics violators in one It is one more, less, objects recordings he would be vulnerable such inanimate as quite when is revealed a second conversations. It is to re another Certainly quire case. he not be consid- should witnesses be se danger purpose ered out of cured because he had con- for the of a future trial. Witnesses, testimony in cluded his the Tantillo- like defendants released on bond, disappear. Jackson case. risk to the infor- do The sanction of dis safety materially govern mant’s would in- missal in a case in which the judge creased because the his ment revelation of satisfied the trial that it had give safeguard the underworld exercised reasonable care to stronger which illicit narcotics flow a informant should un not be invoked eliminating Apparently motive der him. circumstances of this case. the informant has been eliminated. the more recent v. case United States Perry, U.S.App.D.C. 89, Since the instant case the infor (1972), in 1057 ing a situation also involv days mant’s ten revealed statement, a lost Jencks Act we took the the before Roviaro case cannot position a Bryant. somewhat different than proposi be relied on for the immutable emphasized that unless the We tion that the absence at trial of an in justice by interests of penalizing furthered will be participant formant who anwas active government, pen the then the necessarily in the narcotics transaction alty automatically is not be invoked requires the sanction of dismissal.7 game. adversary inas also said We points The dissent to this de- Court’s testimony that order to exclude “[I]n Bryant, cision in United States Act], the Jencks there should be [under (1971). 132, 439 F.2d 642 showing negligence pur either or recording In that case a of a conversa- poseful accompanied by destruction ei agent tion between a narcotics and the judgment.”9 ther bad motive or bad unaccountably been lost. government upon the This Court decision exclude called the trial court’s Dangerous Drugs and the “What Roviaro thus in New York makes clear is that unwilling impose police any coast, Washington, O., de- this Court was ab- west the D. depart- police requiring partment, City solute rule an inform- New York disclosure of the formulating evidentiary family, ment, er’s then even in and with the informant’s McCray living C., Washington, D. area. rules for federal criminal trials.” Illinois, proceedings tran- of November script 54-56, L.Ed.2d 62 60-62. government unable to been Where the has 8. On November the de- trial court be must the trial court locate the nied indict- motion to dismiss the produce that efforts shown “reasonable govern- inability ments based on the him States fruitless. ...” were ment to locаte the informant. The record (9th Makekau, Cir. F.2d wide-ranging inquiries reveals that 1970). met here. That test has been Unit- pursuant request made of the United (2d Guerra, ed States v. Attorney part Septem- in the first 1964). Cir. ber, 1971, nearly three months before trial. Specifically, F.2d at these efforts consisted of check- ing with offices of the Bureau of Narcotics government expect testimony would Perry the rea- while we witness’ themselves, note perjure we grand transcript of witnesses jury that son Phillips11 presence testimony Miss lost was had been her might Here, which the means remanded. the case versed and testimony sought about seek is dismissal the sanction any indi Clearly pen- that would disclose transaction a drastic such indictment. Although appel entrapment. showing ease alty cations of made put Phillips on justice. not to lant chose Miss interest testify Bryant, stand,12 said, respecting Perry, she available to though point, her avail informa- on ability and we feel that Act Jencks that “even any destroyed or is sufficient to overcome lost tion has been concerning the transaction doubts based convictions otherwise criminal May 20, may permit on sufficient evidence long Roviaro that in as the Govern Another distinction to stand so ted pre witness testified made ‘earnest efforts’ ment one. knowing find Rovi the informant had denied crucial materials serve discovery request never seen once a aro and said he had even them empha testimony may (Footnote omitted; him before.13 This made.” original). weight carried considerable sis Court, casting doubt on the soundness Here, the trial discloses Here, there has representa- case. judge was satisfied with similar no such been concern- made tions respecting, government’s case. missing doubts to locate witness. efforts has made It is noted that Here, represented in showing missing informant good produce in- faith that it would would havе been assistance formant at the time of trial and call testified defense. This informant it had in other com- as witness as done government in Tantillo-Jackson parable days Ten cases. and had been of assistance trial, government counsel disclosed That matters. other it had contact informant lost with the helped a as have such witness this would that efforts to to no locate speculation. the defense is sheer avail. His was revealed. Since govern- Rovi- second distinction between this man had testified for the case, aro in Roviaro the and this case is that Tantillo ment is little there informant was witness close reason to testimo- believe that his ny the transaction. Other wit- would been of assistance distance, positioned nesses were at some defense case. the ap- and one was secreted in the trunk of sum, considering In the circumstances informant’s car. the instant instant we conclude that pellant could have Kathleen called a Miss appellant’s contention for reversal Agent Phillips, who was authority on the Roviaro convictions May Cooper 20, 1969, transaction. is unsound. Agent may presence Cooper not II. expressed remove doubts in Roviaro claim, appellant not, As to the that the without balancing again apply possible, once explore able must be Court entrapment by by the government, test was set forth Su- but That test. personal Appel- U.S.App.D.C. safety. 97, 10. 1065. her 153 F.2d at and fear 471 12, n. The record lant’s Brief at 12. noted, however, 11. Miss It should be against severed her was flects that the case Phillips present, was not far as so the trial and dismissed at start discloses, during trans- the narcotics 10, November May 19, action on 64-65, Phillips expressed evidently 12. Miss 77 a desire S.Ct. testify fear of self-incrimination

1007 preme Wingo, plainly seen, peri in Barker 407 As can be the time 514, 2182, appellant’s apprehen L.Ed.2d 101 od 33 between initial (1972): police sion and trial was 26 14 clearly suspect; months. This balancing necessarily ‍‌‌​‌‌‌‌‌‌‌​‌​​‌​‌​​​‌​​​‌​​‌​‌​‌​‌​​‌‌‌​​‌​‌​​​​‍compels test A analysis delays but in various approach speedy trial cases courts to volved show that a trial conten ad can do little on an hoc basis. We tion is unsound. identify more than some of fac- First, through in de-

tors which courts should assess went two termining changes counsel, finally retaining particular de- whether right. permanent deprived April 2, 1970, fendant has been of his counsel on sev- might Though express course, en them in months after his arrest. Of some ways, identify responsi- four such cannot held different Length delay, ble for factors: reason difficulties secur- delay, legal representation. the defendant’s asser- See United Moss, 306, right, U.S.App.D.C. tion of his to the (Footnote 308-309, omitted). 147, (1970). defendant. 438 F.2d 149-150 Next, appellant attempted to transfer also, 530, Id. at at 2192. See Maryland the District Bishton, U.S.App. United States of Columbia on November but 51, 53-54, 887, D.C. 463 F.2d acknowledged that his code- (1972); Hinton v. fendant, Phillips, opposed; it Miss 388, 424 F.2d not until that his code- June (1969); Hedgepeth v. United States agreed. fendant additional seven- This (Hedgepeth II); month should not in fairness be though charged government, balancing In order to facilitate entirely attributable factors, key all a review of the dates lant. may helpful. this case remaining are, periods to consider first, time the seven months Months (April retained counsel Date Event Elapsed 1970) motion to transfer May 19-20, 1969 Narcotics transactions Aug. (November 19, 1970). Logically, some D. C. indictment arraigned 12, 1969 Sept. D.C.; charged of this time must be retained counsel enters give his retained counsel order to appearance Dec. attorney Second appointed gain familiarity with the case. chance to counsel was retained during time, Furthermore, various vacated by appellant in motions were filed Apr. 2, 1970 retains new counsel 11 including a District Cоlumbia 9, Maryland June 1970 Indictment 13 speedy for lack trial motion to dismiss 19, Appellant's Maryland Nov. 1970 discovery. motion to transfer 18 fact and a motion for Jan. 1971 20, Government requests Attorney Maryland the S. U. 20 during period filed an indictment this 1971 24, June Appellant's motion to granted transfer to D. C. 25 (June 9, 1970), only complicated the is- 10, Nov. Trial sues, and led to the continuance of Sentencing 23, March delay year opinions A support of more than one between No of this intimate Court speedy appellees’ thesis, arrest and trial raises a trial claim and the courts of prima Hedgepeth peals question merit. that have considered the facie (Hedgepeth I), 291, constitutional terms have never reversed sole- conviction or dismissed an indictment ly was returned on on the Amendment’s basis of Sixth 9, 1970, approximately pre-in- speedy provision June months thirteen trial where alleged Supreme (Footnotes delay transaction. dictment was involved. Marion, omitted.) United States v. 92 S.Ct. 30 L.Ed.2d 468 at 460. said: ap delay ed in the eventual absence District of Columbia Mary Consequently, trial. pellant’s from of the informant at motion transfer sum, appellant However, to, upon. “either contributed ac land was acted quiesced in, hardly delay “arbi period suffered little this lapses.”18 oppressive from these It trary, purposeful, or vexa should be noted except on bail for a cious.” period prior week of about one to trial. period Lastly, five-month there is the having Thus, into taken all factors ac- (June 22, 1971, transfer to light Wingo, count in Barker we 1971). During peri November deprivation conclude there has been no hearings and an ar od there were three right of the trial. In United case; raignment on the transferred Holt, U.S.App.D.C. 185, States v. government sought In no continuances. (1971), 448 F.2d 1108 mentioned light circumstances, and consid of these delay dissent in between footnote ering delay” “institutional inevitable and trial was 30 months. This arrest calendar,16 of a cannot trial court’s we Court affirmed the conviction. delays say portion of im that this paired right III. points here. Two remain further appellant’s missing toAs wit First, appellant that he suf contends point, ness we believe the trial court act irreparable prejudice fered due refusing ed well within its discretion in delay, discover because he was unable to jury implications to instruct testimony the infor may secure Bur of the absence informant. mant. have While the gess v. United had some additional difficulties because (1970), F.2d 226 indicates the delay, say cannot sub : nature of discretion stantially prejudiced appellant’s defense. give the court is asked to When light of the informant’s conduct instruction, then, judgment is to be assisting appre as to whether from all the cir reached convicting dealers, hending and inference of unfavora cumstances an it is not reasonable to conclude17 testimony an ble from absent witness pre would reverse natural and reasonable one. significant provide any vious course and . the context in which While aid to the The informant was defense. question may arises clothe delay government witness; im be a significance, missing witness paired defense; prosecution, not the danger that the instruction there is without the informant would permitting may inference adverse have tes have been and would available weight add a fictitious to one side or Second, strength considering tified. the case. . . another of . [T]he unlikely government’s case, it is court is entitled reserve itself expected that the informant’s judgment to reach a as wise the ultimate result. altered ly be done all the circum as can assuming preju Even . stances. proceedings diced be mostly light low, finding it is trial attributable court’s initiating largely responsible available, he was for the informant was not “pеculiarly procedures the motions and which result- and within therefore not States, U.S.App.D.C. Skeens, 15. v. Smith United 118 17. 145 U.S. United States 38, 41, (en (1964) banc) ; 784, App.D.C. 404, 408, 1066, 331 F.2d 787 449 F.2d 1070 U.S.App.D.C. States, (1971). Hinton v. United 137 388, 393, 876, (1969). 424 F.2d Canty, United States v. 114, (1972). 107, 103, 469 F.2d Jones, U.S.App. 16. See United States v. 211, D.C. F.2d 322 20 neously government’s] power produce,” pre-trial denied his motion for [the refusing give discovery govern- there no error allegedly ment informant whom he such an instruction. narcotics; (2) sold and that he was de- IV. lapse nied a of twen- ty-seven months between Finally, point of sentenc and trial which resulted in the loss of val ing, has a do find that we majori- The informant. objection. clearly intended There id ty rejects respectfully these claims. however, narcotics; due to be one sale holdings dissent from both of the court. misunderstanding, quan full to some de tity purchased was not of narcotics May May Thus, I. on livered believe, 20, 1969, exchange, should agreed Appellant allegedly sell one May parcel part treated as police ounce heroin informer sale, should and concurrent sentences Maryland May 19, on 1969. After the imposed un consecutive ones rather than completed, informer, transaction was of each indictment. der count one police and a officer with whom he was on Harris reliance working, they discovered that States, 79 S.Ct. United 359 U.S. ounce; accordingly, received half of an (1959); Gore v. L.Ed.2d meeting up another was set with States, United 357 U.S. following day, May 20, lant on the (1958), and Block L.Ed.2d the, Columbia, in the District of so that burger 299, 52 other half ounce could be delivered. (1932), is mis L.Ed. 306 August 27, 1969, appellant On in- placed, cases involved consecu as these May dicted in for the D.C. 20 transac- sentencing different sections tive under tion; 9, 1970, June almost one on laws for one or transfer sale year indictment, after the he was D.C. of narcotics. The Court’s rationale Maryland May indicted Congress line been that of cases has transaction. On November different enacted those statutes Maryland counsel moved to transfer legisla times, specific each time with a Maryland case to D.C. so that it could be being purpose tive The connec served. consolidated with the D.C. case. On the one at tion between these cases and Maryland June district bar, where consecutive sentences were granted the motion transfer. imposed stat under the same narcotics two-part (26 Maryland 4705(a)) ute for a Before return of the indict- U.S.C. § Further, transaction, ment, compelling. filed a motion D. April 23, 1970, requesting because the indictment was C. case on name, address, “the transferred the District of Columbia home and business corresponding telephone for trial with the Dis number consolidated indictment, person’ the mere trict of Columbia ‘certain e. [i. informant] exchanges occurred dif noted in the indictment.” Fifteen fact require later, July 22, 1971, jurisdictions the U. S. ferent doеs not months Judge imposition Attorney at a of consecutive sentences. informed Robinson plan that he did not status hereby The conviction of the informant disclose affirmed, case remanded to and the to, not feel that we have because “we do resentencing. District Court following col- or his whereabouts.” Judge (dissenting) loquy ensued: BAZELON, : .Chief govern- What is the Appellant’s Court: main contentions problem the informant? peal erro- the trial court are: ment’s 118, 121, 14 States, L.Ed. 1021 v. United Graves from the de- Attorney: had resulted Problem U. S. lay, due that was much informant, Your Honor? case to to transfer it is suf- I do not think The Court: D.C. government say that to ficient for hearing subsequent At a on November just they to reveal do not want Walsh, Judge a different name, before there are circumstances because Attorney in- that “the S. indicated U. will be revealed under which testify in this case. He former will not to trial. testimony in this not available for Attorney: revealed It will be S.U. informer, Apparently who case.” not in- The does at trial. in several other had testified identify him, Your unless to tend cases, disappeared fear of out of (Empha- we must. Honor orders that prisal. prosecutor that de- The claimed supplied.) sis diligent him, they spite efforts to locate why I I want to know The Court: him, speak,” so and that had “lost should not. knowledge my has “[t]o Attorney: of his Because U. S. certainly willing, since the end of been safety. conspiracy which was the Tantillo obliga- have an The Court: think I [sic], 1970 to advise tried upon a which tion to establish out, he to find counsel so chose judgment made, I do can counsel. be At- of the informant.” The U. S. name come can not think the torney appeared the earlier who had say, “Well, do just here and Judge hearing Robinson was also supplied.) (Emphasis to.” want hearing. He November at the colleague, and informed repeated corrected that “at After аssurances although the informer was court that will be time of trial [the informant] the Tantillo “the ease,” identified testify will He identified. safety didn’t happen man’s was and we something involved and that “if divulge July identity at the certainly [his care informant], it would [the hearing] did not re- ability trial,” and the court impair proceed our court, safety quire to.” us concerned for agreed that his day On November need revealed trial. appellant’s motion the court denied of his indictment for a dismissal The next considered ground speedy trial that he was denied a motion dismissal of his indict D.C. lengthy delay by speedy Appel due attended ment for lack of a Appellant pointed twenty-seven loss of informant. lant out that “some jury elapsed on three then convicted all months have time [the ”1 of the two indictments. counts each He also stated offense.] year only way, way, sentence on “the He received a five real we could indictment, prejudiced if, unfortunately, counts one and three each some year thing happened inadvertently sentence2 on count and a two six either police two of each indictment. sentence or the [the informer.” officer] noting count one of the D.C. indictment court denied this motion initially claim, argued instead that filed a motion to dismiss between denied a trial on lack April claiming the offense and trial. month four lapse appel between D.C. offense and sentencing lant’s 2. At D.C. indictment Unit March violated Ross imposed two U.S.App.D.C. 233, sentence ed the court below (1965), prohibit years indict- progeny, two of each to ten count which its pursuant unnecessary delays judgment ment. entered between the offense hearing, hearing, however, a sentence indicates indictment. At the June years. Ross of two to six counsel abandoned imposed pre-trial disclosure, consecutive to that on count onе lant’s claim for and Maryland indictment; government’s of the all other the effect of the actions imposed concurrently. thereon, sentences were is that: revealing, the of the infor- II. step ap- mant is to enable the July 22, claims that at the pellant (1) either to obtain the infor- 1971, hearing government prejudiced the testimony trial, mant’s at incident to rights under Roviaro v. United which counsel would seek to interview L. U.S. prior trial, him to or to recon- (1957), withholding impor Ed.2d 639 struct mind the information, making tant and a critical pellant’s relationship and contacts representation adequate without investi perhaps with the offer gation. (A) majority .believe: parties of third to as fails to address this claim because at appellant’s relationship with the infor- ap tributes a different Roviaro claim to mant. pellant; (B) the claim Roviaro, itself, however, specifically makes is meritorious. pre- identifies still third reason for majority ig- trial disclosure that A. nores : Although appellant that he contends calling desirability The infor- [the prejudiced ac witness, or as a at least inter- mant] tions “because the informer was not viewing preparation trial, him in for trial,” majority identified was a matter for accused rather opinion “appel nevertheless asserts that than to decide. 353 Government argues” lant there was “reversible er (emphasis S.Ct. at 629 ror” because the “informant supplied). 3 (Em was not available the trial.” phasis supplied.) justi majority’s Supreme disjunc- The The Court’s use refusing fication to consider tive “or” the defendant indicates that rejects argument 3. The bond, disappear.” court it mistak- defendants released on do enly ground point appears attributes to court to miss Bryant. disappears that evidence, too, “the Roviaro case cannot be relied Inanimate proposition gov- point the immutable the ab- that sometimеs. when the is that sence important was an informant who evi- ernment has access sole to participant active transac- dili- dence undertake or witnesses it should necessarily requires tion gent of dis- sanction evidence efforts to insure that Subsequent however, Roviaro, missal.” to witness is testimo- is not lost. While there Bryant, ny govern- indicating decided United States v. that (1971), attempted 439 F.2d 642 ment once to locate the informer government respon- nothing suggest which held disappeared, that he to there is “losing” prevent sible for evidence can [it] “unless efforts were made promulgated, show disappearing place. it has enforced in the first attempted good rigorous produce government’s promise faith to follow view of systematic procedures pre- designed trial, es- such efforts were serve pecially . . necessary . evidence.” When the infor- here. special employee govern- mant is a majority “[i]n also states ment, Perry, whose seeks more recent case of United States protect spirit, (1972), holding, Bryant requires posi- ‍‌‌​‌‌‌‌‌‌‌​‌​​‌​‌​​​‌​​​‌​​‌​‌​‌​‌​​‌‌‌​​‌​‌​​​​‍. we took different a somewhat adopt adequate procedures contrary, Bryant." which reasona- tion than On the both bly against insure Judge Wright special his loss. the curring in a con- court and My Bryant point opinion brethren state that should not out were careful applied special government holding nothing Perry “affects our informants thing safeguard Perry Bryant" because “[i]t is one such evidence loss of objects recordings inanimate Bryant." as of conversa- F.2d at “occurred quite require tions. It (concurring opinion), another and note (court’s opinion). witnesses be secured for purpose Witnesses, of a future trial. like right interview an informant has to B. call irrespective he intends to of whether It is well settled that infor when Indeed, this court as as a witness. participant” is in the mant “an active recognized DeCoster, v. in United States he was in this criminal transaction —as (C.A.D.C.1973), unless 487 F.2d 1197 disclosed; case—his must be witness obvious- he counsel interviews thus, simply question when here is ly deci- is to make an informed unable Roviaro, required. In in was disclosure testify. him to sion to call as to whether setting remarkably to similar a factual present. that the Court held majority justifies also refusal its denying, also “the court erred appellant’s pre-trial [trial] to claim consider trial, petitioner’s motion for resting to speculation disclosure of the infor and address [the that if re “the informant been [had it . . . ... earlier, [s]ince mant] . still vealed] [he] trial; face of the indict from the was evident present would not have been at partic was a that probably informant] ment [the [he] would have been eliminat to ipant th[e] material witness and a ed e. as [i. sooner.”4 This murdered] S.Ct. at n. wholly sale.” 353 at 65 unsupported U.S. sertion is Despite (emphasis suppliеd). record; present so far re as the however, plain need not de language, veals, may earlier disclosure have well set intended to Roviaro cide whether assisted infor to secure the pre requiring rule down an inflexible presence mant’s so at informant is a when disclosure chose. permits participant. if Roviaro For even short, plainly In the court protect delay to in order of disclosure quired appellant’s to consider whether delay may clearly informant,6 such pre-trial disclosure was opportuni defendant’s abridged appellant’s opportuni- because ty him, it did in this as interview ties interview informant case. preparation for trial and him as a call attempted Although the trial court prejudiced delay in witness were July 22 hear- “establish a record” disclosure. participant Nothing supports majori- is a whenever in the record majority ty’s transaction, repeated suggеstion contin- criminal that informant ually “balancing” “eliminated,” refers Roviaro’s test has been let com- alone its pletely respect gratuitous as if the bal- “with to disclosure” dis- assertion that earlier (Empha- already probably ance had been struck. closure in supplied.) Thus, appears contrary, sis hastened his demise. On the both Attorney supervising attach the fact Miss some relevance to U.S. and the offi- Phillips present May cer “was ... from the Bureau Dan- of Narcotics gerous Drugs, they If this fact rele- indicated did not transaction.” maintain know vant whether the informant was “dead disclosure —and required distinguish 20; alive.” Tr. Nov. Tr. Nov. not —the court was 11,1971 May May at 55. between the transac- Phillips tions because Miss was not States, 5. Skeens v. United the latter. No such distinction is consid- See also ered. States, Roviaro v. United 77 S. (1957) presents ; safety Ct. 1 L.Ed.2d 6. The informants United of narcotics Miramon, (9th problem may justify States v. Cir. serious well 1971) ; Lopez-Hernandez рre-trial some In such United disclosure. (9th 1968) ; cases, however, 394 F.2d 820 Cir. States should United 1969) ; Barnett, (6th required 418 F.2d 309 reasonable efforts —such Cir. to make (2nd protect Roberts, protective custody invoking as F.2d 646 —to 1968). against disappearance. Cir. the informant’s Although clearly supra. progeny Roviaro and its note 3 strike balance favor disclosure be, on which to decide mo relocated in another jurisdiction, or disclosure, pre-trial gov tion for that the Bureau had lost track of him. ernment failed to reveal7 the infor situations, of these immediate mant had testified at several other required disclosure would be to insure critically protection This fact was relevant maximum trials.8 rights. to the court’s of whether determination protect required the infor Thus, government’s failure to re- already mant since he was known fact, veal making a material and its on It also bore important representation underworld.9 without ad- might the likelihood the informant equate inquiry, court, misled the trial jurisdiction “relocate,” leave this and thereby prejudiced right appellant’s reason, too, impor and for that it was and, to interview, perhaps, call in- regarding tant to a determination Accordingly, formant. his conviction timing of disclosure. reversed, should be the informant Moreover, hearing, located, cannot at this same now be his indictment Attorney repeatedly U. must S. assured the be dismissed.

the informant which government might If the pression means present at trial. This ently informant’s reau of Narcotics and court location of narcotics made without has Bureau had been that the which to secure his responsibility trial, thereby giving whereabouts the informant would be had representation been, contacting Dangerous Drugs, or was about to discovered contacted, informants.10 monitoring was had some knew the presence the Bu appar im however, duced Government.’ trial.11 trial ‘the trial nied his “[t]ime elapsed between his longer the heavier the adequate explanations13 because constitutional We have whether the the most also claims ^[12] ” delay twenty-seven III. We repeatedly between arrest and important need indictment and burden that he held that was on months factor; justify decide, speedy ad de Maryland Brady Maryland, 83, tween indictment v. 373 U.S. 83 S. however, 1194, day (1963) ; offense was be Ct. 10 L.Ed.2d v. committed the 215 Levin offense, Katzenbach, 287, U.S.App.D.C. fore the D.C. and thirteen months 363 F.2d 124 lapsed Maryland (1966) ; Clark, U.S.App.D. before 158 return of the indict Levin v. 133 States, 6, (1967). ment. See C. Ross v. 121 1209 United U.S. App.D.C. 233, (1965). 349 F.2d 210 Com Tr., 8. See Trial Nov. at 37. pare 307, Marion, United States ‍‌‌​‌‌‌‌‌‌‌​‌​​‌​‌​​​‌​​​‌​​‌​‌​‌​‌​​‌‌‌​​‌​‌​​​​‍v. 404 U.S. 8, 455, 315 n. L.Ed.2d 468 8, Roviaro, supra, 9. See & n. (1971). circumstances, In these I would majority claims that S.Ct. 623. The appellant’s also find trial claim informant be considered out “should not Maryland meritorious, al indictment danger his testi- because he concluded though only will, convenience, discuss determination, mony in This [othеr cases].” the D.C. text. court, regardless merit, trial of its is for the government. Indeed, U.S.App.D.C. Holt, this 12. United States Attorneys 185, (opin- (1971) one of informed F.2d Leventhal, J.), Hedgepeth quoting was that he believed the ion of willing “since the disclose case,” more end was of the Tantillo which F.2d See also United July 22, Rucker, than nine months hearing. delay ap- (“When the proaches year half, . . a and a .' Tr., See Trial Nov. justification provide Government must outweighs prejudice convincingly which only majority discusses 11. The normally be [to the can defendant] which case; its claim on the D.C. assumed.”). rejection claim, which was based of that eight majority suggests twenty-seven delay, results, the first month for- delay claim, since rejection due to tiori, months of changes at- It also of counsel. be- he had two a seventeen month which involved this since an additional ease demonstrate that infor [the this unusual gov- possible highly loss of mant’s] factor was —the might helpful the de- relevant and have been ernment informant occasioned lay swings the defense.” clearly 63-64, the balance 353 U.S. at 77 S. —that (emphasis Thus, supplied). Ct. at 629 favor. prejudiced as a matter of claim, rejects majority hold law,16 obliged up and the court to conclude that “it is not reasonable challenge. hold his pro . the informant would fact, appellant any significant precluded In to the defense.” from vide aid making showing Requiring make such a further resulting showing, however, on an erroneous the loss of the informant rests governing majority application case law. also sustained jurisdiction, he need estab failure to his iden- disclose tity possibility disappeared. of he had lish “a reasonable after 14 slight Nonetheless, prejudice,” appellant show even knew a or “[e]ven 15 ing disappeared possible prejudice.” he of And the informant had explicitly Supreme he Court has stated that advised court “[i]f during prejudicеd by disappear a would be event de such an witnesses die or might lay, prejudice obvious,” a de because the informant is substanti- “prepar phone thereby ate his claims that certain conver- fendant is hindered in against illegally [ing] Wingo, sations 407 used him were his case.” Barker v. entrapped 532, 514, obtained and he was L. 92 33 government. Thus, (1972). Moreover, claim Ed.2d in Rovi 101 clearly setting virtually of aro, not an- after- in a was supra, factual thought appeal. case, raised on In the face of identical the instant Su twenty-seven delay, preme a to see month fail said, circumstances “[t]he Court shortly being hired —a was disbarred tributes an additional months to the seven hardly attributable circumstance fact Maryland moved to transfer attorney court-appointed then A lant. was of to the District Co assigned appellant; remaining half three and one lumbia. The twelve months it attorney court-appointed simply “arbitrary, purposeful, months later this holds were dismissed, oppressive retained. was and another counsel or This vexatious.” conclusion why purpose an attor- The record does not indicate fails understand the nature and ney juris appointed This dismissed. then of a “In trial: our delay, therefore, may appropriate peculiarly due to not have been to hold diction it is appellant. Finally, arrang obligation did court the Government to the of Holt, motion for not act on transfer v. United trial.” States 1108, can- U.S.App.D.C. 185, seven months. This considerable 145 F.2d 1111 448 simply wholly X). Thus, (1971) (opinion Leventhal, attributed made to transfer. because he the motion an affirmative was under responsible sum, obligation rapidly twelve to move those twenty-seven portion months, month de- particularly small of them fol since seven lay. eight changes lowed an month due to counsel, a twen five of them followed Holt, U.S.App.D.C. 145 States v. United ty-two Hedgepeth delay. v. Unit month See Hedgepeth (1971) ; 1108, 185, 448 1110 F.2d U.S.App.D.C. 291, States, F.2d ed 364 291, States, U.S.App.D.C. v. United 684, (“The passing such (1966) Hedgepeth ; v. United F.2d length time, considerable no matter who States, 365 F.2d fault,’ spur to the is ‘at act as should (1966). prompt If Government to seek regard, ap Government lax this U.S.App.D. States, Harling United period propriate into ac earlier to take the (1968). also F.2d C. count.”) . States, 142 v. United Coleman Moreover, attribut- even months the fifteen (1971). part appellant by ma- Ap- ed whole or U.S.App.D. jority inaccurately apportioned. Harling v. United retained, pellant’s counsel, 26 L.Ed.2d 26 first who Circuit, order of until further Third there my can conclude brethren how prejudice” to Court. possibility of was “no Accord- pellant circumstances. these requested to advise Counsel are convictions ingly, reverse I would proceedings progress court of the with instructions in the above noted Stretch indictments. dismiss his Weinberger. Judge dissents

Circuit MacKINNON opinion forth in his the reasons set filed herein this date. Judge:

MacKINNON, Circuit majority panel ordered A sponte case sua that this Appellant, SCHECHTER, Malvin dispo- abeyance pending final held in A. sition William Secretary, WEINBERGER, Caspar W. Weinberger, Caspar No. Stretch v. W. Health, Department of United 73-1547, 639, pending in the Welfare. Education and Appeals States Court of No. 73-1797. Circuit, further or until the Third Appeals, order of this Court. United States of Circuit. District Columbia parties are entitled to believe the our opinion My time. individual Argued Dec. follows. views the merits are as April Decided survey reports lit- July 10, fall within amended As language Exemption Three eral of ex- Act which Freedom of Information empts are matters from disclosure “specifically exempted disclosure 552(b)(3). by statute.” U.S.C. C., § Washington, Plesser, L. D. Ronald prohibits 1306(a) Title Section Washing- Morrison, with whom Alan B. report “any . . disclosure . C., brief, ton, D. for by the . time obtained lant. by any officer Secretary or . . . Kimmel, Dept, Atty. Jus- Michael Department employee Jr., Titus, tice, with whom Harold H. discharging their course Schaitman, Atty., and Leonard U. S. chapter spective duties under Atty., Dept, Justice, were on Secretary except as Fleischer, brief, appellee. H. Walter regulations prescribe.” may by Justice, Atty., Dept, also entered survey reports were obtained Since appearance appellee. discharge Secretary of his Judge, FAHY, Before Senior Circuit express duties, they lan- fall within MacKINNON, and WRIGHT and Circuit guage are and therefore of Section 1306 Judges. language of least within the literal Exemption Three. ORDER Congress intend- The issue is whether sponte, Court, exempt reports sua

It is ordered ed to this nature. separate ques- is held above entitled case This issue turns on two abeyance pending disposition First, Congress final tions. intended whether Weinberger, ‍‌‌​‌‌‌‌‌‌‌​‌​​‌​‌​​​‌​​​‌​​‌​‌​‌​‌​​‌‌‌​​‌​‌​​​​‍reports 73- case of Stretch v. No. include of this nature within 1306; 639, pending second, Con- the Unit- Section whether gress ed Appeals intended States Court of to included Section

Case Details

Case Name: United States v. Walter E. Ferguson, United States of America v. Walter Edward Ferguson

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 21, 1974

Citation: 498 F.2d 1001

Docket Number: 72-1369, 72-1370

Court Abbreviation: D.C. Cir.