United States v. Makekau

Decision Date09 November 1970
Docket NumberNo. 24358.,24358.
Citation429 F.2d 1403
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Kenneth A. MAKEKAU and Yoichi Takahashi, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Stuart M. Cowan (argued), Richard A. Williams, of Greenstein & Cowan, Honolulu, Hawaii, for appellants.

Joseph M. Gedan (argued), Asst. U. S. Atty., Robert K. Fukuda, U. S. Atty., Honolulu, Hawaii, for appellee.

Before JERTBERG, BROWNING and HUFSTEDLER, Circuit Judges.

Certiorari Denied November 9, 1970. See 91 S.Ct. 143.

PER CURIAM:

Defendant Makekau was convicted of selling heroin in violation of 21 U.S.C. § 174 and 26 U.S.C. § 4704(a). Defendant Takahashi was convicted of violating section 4704(a). We affirm both convictions.

Defendants contend that they were denied effective assistance of counsel by a pretrial order limiting their counsel's access to the government informer who made the purchases in the transactions for which they were indicted. The order instructed the government to disclose the informer's identity to the defendants but forbade both defendants and their counsel from "directly or indirectly contacting or attempting to contact the informer without prior authorization in writing of this Court."

Federal Rule of Criminal Procedure 16(e) authorizes district courts to issue protective orders limiting discovery "upon a sufficient showing." In this instance the order was amply justified by the prosecuting attorney's representations that threats had been made against the lives of the informer and his family and that his wife had been murdered after receiving such threats. In the ordinary case, the informer may be afforded sufficient protection by an order limiting disclosure of his whereabouts to defense counsel. United States v. D'Angiolillo, 340 F.2d 453, 455 n.3 (2d Cir. 1965). Here, however, the demonstrated risk of death justified the further requirement that counsel obtain prior court authorization so that steps might be taken to assure that the informant's location would not be disclosed to others inadvertently.

Defendants urge that the district court erred in denying their motions to dismiss and to suppress the testimony of the government's principal witness when the government failed to comply with a court order to produce the informant-purchaser just prior to the date set for trial. The district court held an evidentiary hearing on these motions and wrote an extensive opinion. The court recognized that "in common fairness it is the government's duty to produce an informer at trial or failing that, to show that reasonable efforts to produce him were fruitless * * *," but concluded that "under the facts of this case, * * * neither the defendants nor the government was to be faulted for the disappearance and apparent non-availability of the informer." The standard which the court applied was proper (see United...

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  • U.S. v. Aguilar
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 30, 1989
    ...as not applicable to the facts of this case." United States v. Cervantes, 542 F.2d 773, 778 (9th Cir.1976) (quoting United States v. Makekau, 429 F.2d 1403, 1404 (9th Cir.), cert. denied, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141 Aguilar contends that she established facts sufficient to wa......
  • United States v. Wolfson, Crim. A. No. 1909.
    • United States
    • U.S. District Court — District of Delaware
    • February 3, 1971
    ...process being served on him, automatically create a violation of the defendant's right to compulsory process. United States v. Makekau, 429 F.2d 1403 (C.A.9, 1970), cert. den. 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141 20 In Gillars v. United States, 87 U.S. App.D.C. 16, 182 F.2d 962 (1950)......
  • U.S. v. Aguilar
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 14, 1989
    ...as not applicable to the facts of this case." United States v. Cervantes, 542 F.2d 773, 778 (9th Cir.1976) (quoting United States v. Makekau, 429 F.2d 1403, 1404 (9th Cir.), cert. denied, 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141 Aguilar contends that she established facts sufficient to wa......
  • U.S. v. Walk
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 19, 1975
    ...under Rule 16(d) or make such a protective order as the circumstances dictate under Rule 16(e). See, e. g., United States v. Makekau, 429 F.2d 1403 (9th Cir. 1970). Here, however, the record is devoid of any showing of such countervailing considerations by the The majority relies heavily on......
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