491 F.2d 1390 (9th Cir. 1974), 73-2352, United States v. Sin Nagh Fong

• Docket Nº: 73-2352.
• Citation: 491 F.2d 1390
• Party Name: UNITED STATES of America, Appellee, v. SIN NAGH FONG, Appellant.
• Case Date: February 22, 1974
• Court: United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1390

491 F.2d 1390 (9th Cir. 1974)

UNITED STATES of America, Appellee,

v.

SIN NAGH FONG, Appellant.

No. 73-2352.

United States Court of Appeals, Ninth Circuit.

February 22, 1974

Appeal from the United States District Court for the District of Oregon; James M. Burns, Judge.

William C. Snouffer (argued), Portland, Ore., for the appellant.

Jack C. Wong, Asst. U.S. Atty., Portland, Ore., for appellant.

Before BROWNING and SNEED, Circuit Judges, and BURKE, ¹ District judge.

ORDER

The panel as constituted in the above case has voted to deny the petition for

Page 1391

rehearing and to reject the suggestion for rehearing in banc.

The full court has been advised of the suggestion for an in banc hearing, and no judge of the court within the seven day period as suggested by General Order 15(5), Fed.R.App.P. Rule 35(b), has requested a vote on the suggestion for rehearing in banc.

BROWNING, Circuit Judge (concurring):

I vote to deny the petition for rehearing and to reject the suggestion for rehearing in banc because appellant did not raise in the trial court his present contention that the government (1) had failed to make reasonable efforts to produce the informer, or (2) was in some way responsible for the unavailability of the informer as a witness. Appellant did move prior to trial for an order requiring the government to produce the informer as a witness. However, the only ground advanced in support of the motion was the clearly untenable one that the government had an absolute obligation to produce the informer so appellant could confront him at trial. Neither in connection with this motion nor at any other time in the proceedings below did appellant seek an order requiring the government to show that it had not contributed to the...