353 U.S. 53 (1957), 58, Roviaro v. United States

Docket Nº:No. 58
Citation:353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639
Party Name:Roviaro v. United States
Case Date:March 25, 1957
Court:United States Supreme Court
 
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353 U.S. 53 (1957)

77 S.Ct. 623, 1 L.Ed.2d 639

Roviaro

v.

United States

No. 58

United States Supreme Court

March 25, 1957

Argued December 11, 1956

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SE'ENTH CIRCUIT

Syllabus

Petitioner was convicted in a Federal District Court for violating 21 U.S.C. §174, by knowingly possessing and transporting heroin imported unlawfully. In the face of repeated demands by petitioner for disclosure, the trial court sustained the Government's refusal to disclose the identity of an undercover informer who had taken a material part in bringing about petitioner's possession of the drugs, had been present with petitioner at the occurrence of the alleged crime, and might have been a material witness as to whether petitioner knowingly transported the drugs as charged.

Held: In the circumstances of this case, failure of the court to require disclosure of the identity of the informer was reversible error. Pp. 54-66.

(a) Where disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair trial, the Government's privilege to withhold disclosure of the informer's identity must give way. Pp. 60-62.

(b) However, no fixed rule is justifiable. The public interest in protecting the flow of information to the Government must be balanced against the individual's right to prepare his defense. Whether nondisclosure is erroneous depends on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors. P. 62.

(c) In this case, the informer was not expressly mentioned in the relevant charge of the indictment; but the charge, viewed in connection with the evidence introduced at his trial, is so closely related to the informer as to make his identity and testimony highly material. Pp. 62-63.

(d) The provision of the statute authorizing a conviction when the Government has proved that the accused possessed narcotics -- unless he explains or justifies such possession -- emphasizes petitioner's vital need for access to any material witness. P. 63.

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(e) The circumstances of this case demonstrate that the informer's possible testimony was highly relevant, and might have been helpful to the defense. Pp. 63-65.

(f) On the record in this case, it cannot be assumed that the informer was known to petitioner and available to him as a witness, nor that the informer had died before the trial. P. 60, n. 8.

(g) The trial court erred also in denying, prior to the trial, petitioner's motion for a bill of particulars, insofar as it requested the informer's identity and address, particularly because Count 1 of the indictment charged an unlawful sale of heroin to the informer. P. 65, n. 15.

229 F.2d 812, reversed and remanded.

MINTON, J., lead opinion

MR. JUSTICE BURTON delivered the opinion of the Court.

This case concerns a conviction for violation of the Narcotic Drugs Import and Export Act, as amended.1

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The principal issue is whether the United States District [77 S.Ct. 625] Court committed reversible error when it allowed the Government to refuse to disclose the identity of an undercover employee who had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged. For the reasons hereafter stated, we hold that, under the circumstances here present, this was reversible error.

In 1955, in the Northern District of Illinois, petitioner, Albert Roviaro, was indicted on two counts by a federal grand jury. The first count charged that, on August 12, 1954, at Chicago, Illinois, he sold heroin to one "John Doe" in violation of 26 U.S.C. § 2554(a). The second charged that, on the same date and in the same city, he

did then and there fraudulently and knowingly receive, conceal, buy and facilitate the transportation and concealment after importation of . . . heroin, knowing the same to be imported into the United States contrary to law; in violation of Section 174, Title 21, United States Code.

Before trial, petitioner moved for a bill of particulars requesting, among other things, the name, address and occupation of "John Doe." The Government objected on the ground that John Doe was an informer and that his identity was privileged. The motion was denied.

Petitioner, who was represented by counsel, waived a jury and was tried by the District Court. During the trial, John Doe's part in the charged transaction was described by government witnesses, and counsel for petitioner, in cross-examining them, sought repeatedly to learn John Doe's identity. The court declined to permit this cross-examination, and John Doe was not produced, identified, or otherwise made available. Petitioner was

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found guilty on both counts, and was sentenced to two years' imprisonment and a fine of $5 on each count, the sentences to run concurrently.2 The Court of Appeals sustained the conviction, holding that the concurrent sentence was supported by the conviction on Count 2, and that the trial court had not abused its discretion in denying petitioner's requests for disclosure of Doe's identity. 229 F.2d 812. We granted certiorari, 351 U.S. 936, in order to pass upon the propriety of the nondisclosure of the informer's identity and to consider an alleged conflict with Portomene v. United States, 221 F.2d 582; United States v. Conforti, 200 F.2d 365; and Sorrentino v. United States, 163 F.2d 627.

At the trial, the Government relied on the testimony of two federal narcotics agents, Durham and Fields, and two Chicago police officers, Bryson and Sims, each of whom knew petitioner by sight. On the night of August 12, 1954, these four officers met at 75th Street and Prairie Avenue in Chicago with an informer described only as John Doe.3 Doe and his Cadillac car were searched, [77 S.Ct. 626] and no narcotics were found. Bryson secreted himself in the trunk of Doe's Cadillac, taking with him a device with which to raise the trunk lid from the inside. Doe then drove the Cadillac to 70th Place and St. Lawrence Avenue, followed by Durham in one government car and Field and Sims in another. After an hour's wait, at about 11 o'clock, petitioner arrived in a Pontiac, accompanied by an unidentified

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man. Petitioner immediately entered Doe's Cadillac, taking a front seat beside Doe. They then proceeded by a circuitous route to 74th Street near Champlain Avenue. Both government cars trailed the Cadillac, but only the one driven by Durham managed to follow it to 74th Street. When the Cadillac came to a stop on 74th Street, Durham stepped out of his car onto the sidewalk and saw petitioner alight from the Cadillac about 100 feet away. Durham saw petitioner walk a few feet to a nearby tree, pick up a small package, return to the open right front door of the Cadillac, make a motion as if depositing the package in the car, and then wave to Doe and walk way. Durham went immediately to the Cadillac and recovered a package from the floor. He signaled to Bryson to come out of the trunk, and then walked down the street in time to see petitioner re-enter the Pontiac, parked nearby, and ride away.

Meanwhile, Bryson, concealed in the trunk of the Cadillac, had heard a conversation between John Doe and petitioner after the latter had entered the car. He heard petitioner greet John Doe and direct him where to drive. At one point, petitioner admonished him to pull over to the curb, cut the motor, and turn out the lights so as to lose a "tail." He then told him to continue "further down." Petitioner asked about money Doe owed him. He advised Doe that he had brought him "three pieces this time." When Bryson heard Doe being ordered to stop the car, he raised the lid of the trunk slightly. After the car stopped, he saw petitioner walk to a tree, pick up a package, and return toward the car. He heard petitioner say, "Here it is," and "I'll call you in a couple of days." Shortly thereafter, he heard Durham's signal to come out and emerged from the trunk to find Durham holding a small package found to contain three glassine envelopes containing a white powder.

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A field test of the powder having indicated that it contained an opium derivative, the officers, at about 12:30 a.m., arrested petitioner at his home and took him, along with Doe, to Chicago police headquarters. There, petitioner was confronted with Doe, who denied that he knew or had ever seen petitioner.4 Subsequent chemical analysis revealed that the powder contained heroin.

I

Petitioner contends that the trial court erred in upholding the right of the Government to withhold the identity of John Doe. He argues that Doe was an active participant in the illegal activity charged, and that therefore the Government could not withhold his identity, his whereabouts, and whether he was alive or dead at the time of trial.5 The Government does not defend the nondisclosure of Doe's identity with respect to Count 1, which charged a sale of heroin [77 S.Ct. 627] to John Doe, but it attempts to sustain the judgment on the basis of the conviction

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on Count 2, charging illegal transportation of narcotics.6 It argues that the conviction on Count 2 may properly be upheld, since the identity of the informer, in the circumstances of this case, had no real bearing on that charge, and is therefore privileged.

What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Scher v. United States, 305 U.S. 251,...

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