United States v. Roviaro

• Citation: 229 F.2d 812
• Decision Date: 07 March 1956
• Docket Number: No. 11616.,11616.
• Parties: The UNITED STATES of America, Plaintiff-Appellee, v. Albert ROVIARO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

229 F.2d 812 (1956)

The UNITED STATES of America, Plaintiff-Appellee, v. Albert ROVIARO, Defendant-Appellant.

No. 11616.

United States Court of Appeals Seventh Circuit.

February 7, 1956.

Rehearing Denied March 7, 1956.

Maurice J. Walsh, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., Chester E. Emanuelson Asst. U. S. Atty., Chicago, Ill., of counsel, for appellee.

Before FINNEGAN, LINDLEY and SCHNACKENBERG, Circuit Judges.

LINDLEY, Circuit Judge.

In a trial before the court without a jury, defendant was found guilty upon the two counts of an indictment charging that he (1) on August 12, 1954, sold to one John Doe heroin in violation of 26 U.S.C. § 2554(a), and (2) on the same date, in the city of Chicago, knowingly received, concealed and facilitated the transportation, after importation, of heroin in violation of 21 U.S.C.A. § 174. The court entered a general sentence, ordering defendant imprisoned for two years and fined.

Upon appeal, defendant aserts error in that the court (1) denied his petition for a bill of particulars disclosing the home address and occupation of John Doe; (2) unduly limited the cross-examination concerning the identity of the said Doe; and (3) wrongfully denied his request for production of a report of Narcotic Agent Durham.

In support of the first two alleged errors defendant urges that, inasmuch as Count I charged sale of narcotics by defendant to John Doe, the latter became more than a mere informer but an active participant in the transaction, as the purchaser of the contraband goods. He recognizes the rule that if the person named is only "an informer and nothing more" defendant is not entitled to have the identity disclosed; but he insists that, where the so-called informer is an active participant in the illegal transaction, the defendant is entitled to full disclosure of the identity of the participant, and cites in support of his argument, Sorrentino v. United States, 9 Cir., 163 F.2d 627; United States v. Conforti, 7 Cir., 200 F.2d 365; Portomene v. United States, 5 Cir., 221 F.2d 582. However, in view of our conclusions, we find it unnecessary to decide whether the facts at bar bring the case within the authorities cited, inasmuch as it is undisputed that John Doe was not a participant in defendant's illegal possession charged in Count II. This we think will be clear from a brief review of the undisputed evidence.

Both Agent Durham and Police Officer Bryson witnessed the transactions involved in the charges of Count II, Officer Bryson from the trunk of a Cadillac automobile where he was concealed, and Agent Durham from a point a short distance away from defendant. Each saw defendant go to a certain tree, pick up a package, and carry it to the Cadillac. This package, when analyzed, was found to contain heroin. John Doe had nothing to do with defendant's illegal possession or carriage of the package; he was not a participant in any sense of the word, in defendant's procurement and transportation of the package. Proof of his identity would not have shed any light at all upon the undisputed, illegal acts of defendants, United States v. Li Fat Tong, 2 Cir., 152 F.2d 650, 652, for the latter's possession and carriage of the package alone furnished prima facie evidence of guilt under Count II and left him with the burden to prove that he possessed the narcotics lawfully. United States v. Li Fat Tong, 152 f.2d 650, at page 652, and cases there cited. Indeed, such is the express provision of 21 U.S.C.A. § 174. See United States v. White, 7 Cir., 228 F. 2d 832 and cases there cited. It follows, then, that since the evidence of guilt upon Count II is undisputed, and under it, John Doe was in no wise implicated with the illegal possession of defendant, any question of his identity is wholly immaterial on this charge.

It follows also that, inasmuch as the sentence was general and guilt under Count II is sufficient to support the sentence, it is, as we have pointed out, immaterial as to whether error intervened as to Count I, for it has long been established that if a sentence does not exceed that which may lawfully be imposed under any single count, the judgment must be affirmed, if the evidence is sufficient to sustain any one of the counts. Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173; Sinclair v. United States, 279 U.S. 263, at page 299, 49 S.Ct. 268, 73 L.Ed. 692; Brooks v. United States, 267 U.S. 432, at page 441, 45 S.Ct. 345, 69 L.Ed. 699; United States v. Iacullo, 7 Cir., 226 F.2d 788, 795-796.

We have remaining the question of whether the trial court committed prejudicial error in refusing defendant's request for production of Agent Durham's alleged written report to the Narcotics Division. This question arose upon defendant's cross-examination of Durham, who testified that he found the package of contraband wares picked up by defendant and deposited by him in the automobile. The captured narcotics were, for safe-keeping, preserved in a sealed manila envelope, which was produced and introduced in evidence. It bore a label in Agent Field's handwriting, stating that the narcotics had been "found by Officer Jas. L. Bryson," and was witnessed by Agents Field and Durham and Officers Bryson...