United States v. Williams

• Decision Date: 02 May 1974
• Docket Number: No. 73-1006.,73-1006.
• Citation: 496 F.2d 378
• Parties: UNITED STATES of America, Appellee, v. Felix Davila WILLIAMS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

496 F.2d 378 (1974)

UNITED STATES of America, Appellee, v. Felix Davila WILLIAMS, Defendant, Appellant.

No. 73-1006.

United States Court of Appeals, First Circuit.

Submitted February 6, 1974.

Decided May 2, 1974.

Nicolas Nogueras, Jr., San Juan, P. R., on brief for appellants.

Jorge Rios Torres, Asst. U. S. Atty., with whom Julio Morales Sanchez, U. S. Atty., and Jose A. Anglada, Asst. U. S. Atty., were on brief, for appellee.

Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

After a jury trial Davila Williams was convicted on three counts of distributing, and possessing with intent to distribute, heroin and cocaine. 21 U.S.C. § 841(a)(1). The government's principal witnesses were three undercover agents who testified that Davila Williams sold heroin to one of them on November 7, 1971, and cocaine to another on November 21. Each of the sales was witnessed by the other agents. The gift of a sample of cocaine to one of the agents on November 7 was the third offense.

The agents stated that on both dates Osvaldo Santiago, a paid informer arrested previously by one of the agents, had tipped them off to Davila Williams' interest in dealing, and that he was present at the transactions. Another informer, Ruben Rodriguez Tirez, was said to have been present at some of the events on November 7. The government never called either informer,¹ although just before the jury was empanelled it provided Davila Williams with their names and last reported addresses.

We discuss below the alleged errors assigned by appellant. None of them warrants reversal.

The Absent Informants

Davila Williams urges that the failure of the government to provide him with the identities of the informers "within reasonable time and promptly before trial date" denied him due process of law. He supports his argument by reference to a document dated April 11, 1972, entitled "Omnibus Hearing Report", negotiated by an Assistant U. S. Attorney and defense counsel. The District of Puerto Rico was experimenting with the omnibus pretrial procedure. The parties were to discuss the case, complete the lengthy questionnaire and present it to the magistrate for approval. Compliance was not full: many questions on the form went unanswered, some were answered inappropriately, and the form was never presented to the magistrate.² The questionnaire, in the section "Motions Requiring Separate Hearing", requires "The Government to state (1) There (was) (was not) an informer . . . involved." Neither parenthesis was checked. Instead, "informer" was underlined and next to the sentence was typed:

"INFORMATION NOT AVAILABLE AT THIS TIME."³

Davila Williams argues that this response, when read in the context of a general proviso that all requests for discovery "ordered above" are continuing ones, and that all such information coming to the attention of either party shall be made available promptly to the opposing side, committed the government to inform him well in advance of trial of the informers' identity and whereabouts. We cannot go so far.⁴ Nowhere in the form did the government agree to supply that information, and the information was never "ordered", as might have been the case had the parties appeared before the magistrate. The notation "INFORMATION NOT AVAILABLE AT THIS TIME" is unrevealing. While we do not condone the government's foot-dragging, the defense had no reason to conclude that the incomplete form, which it signed, imposed a self-enforcing duty upon the government. Nearly seven months elapsed between April and the trial, during which time the defense did not seek the assistance of magistrate or court either in carrying through with the omnibus procedure or in learning more about informers. We do not think the inconclusive efforts in April materially affected the rights of the parties at trial.

Nor can we say that the government in these circumstances had a duty to volunteer before trial the names and whereabouts of informers, see Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L.Ed.2d 639 (1956).⁵ Cf. United States v. Richter, 488 F.2d 170 (9th Cir. 1973). When the informers' names and addresses were furnished, defense counsel moved for a continuance and, in the alternative, argued that the government should produce the informers. The court denied a continuance, pointing out that it was Wednesday, that the trial would carry over beyond a forthcoming three day weekend, and that there would be ample time for defendant to interview the two witnesses, both of whom resided in Puerto Rico. In fact, the presentation of evidence continued into the middle of the next week, with arguments and charge on the Thursday following. Under the facts, the district court did not abuse its discretion in denying a continuance; and, given its reasonable expectation that the defense would have access to the witnesses, there was no reason then to explore the alternative suggestion that the government be ordered to produce them.

The trial then proceeded; in its course one of the agents mentioned on cross examination that he had last seen Osvaldo Santiago on January 4, 1972, and did not personally know where he could now be located. Another agent testified that he did not know whether the informers were at their former addresses, and that the names of informers had been held back even from the United States Attorney (apparently confirming an earlier statement by the prosecution that it had first known of the informers only by numbers). The defense formally rested on Wednesday, October 11 (a week after the informers' names and addresses had been provided) without having made any mention of its efforts to locate and interview the informers. It did not tell the court that it had failed to locate them, did not request the government to find or produce them, and did not indicate any further desire to interview or call them.

After closing arguments on the day following, the subject of the informers again arose, this time in connection with defendants' request, which was denied, for a missing witness instruction.⁶ The government argued that it had provided the names and addresses and that the fact it did not use the evidence "does not mean that we are withholding it and that it is adverse." To this defense counsel replied,

"Your Honor, number one those names and addresses were given at our request at the beginning of trial. Counsel checked out, I could not find any of the two persons that correspond to that name at those addresses but irrespective of that, number one, we believe that it was a tardy production of the names and addresses of these witnesses but in any event, these instructions goes sic to the fact that not calling witnesses to these transactions, not calling the informers that was certainly a most active part of this transaction, not calling them to testify by the District Attorney produces the inference and presumption that your Honor has heard and we request to be instructed to the jury."

The foregoing events, and their sequence, are relevant not only to the missing witness instruction (discussed below) but also to whether the government may have acquired a duty to help locate the absent informers after the defense could not find them. Though not explicitly raised on appeal, the latter question naturally arises, since the government's duty under Roviaro to produce names and addresses requires it to produce correct information or at least to have exercised diligence reasonable under the circumstances to locate the informer. It would be serious misconduct for the government intentionally to withhold or to falsify the Roviaro information. How far it must go to keep track of, or search for, an informer is less easily stated; that depends on many factors including the extent of the government's control over the witness, the importance of the witness' testimony, the difficulty of finding him, and similar matters. We do not accept a flat rule requiring production of all informer witnesses whenever the government has not disclosed their names before trial. Compare United States v. Jones, 492 F. 2d 239 (3d Cir. 1974) with United States v. Picard, 464 F.2d 215 (1st Cir. 1972). But should an informer disappear or become unavailable to the defense, we would compel the government, upon timely demand, either to locate him or make an affirmative showing satisfactory to the court why it could not reasonably be expected to do so and of its diligence generally as regards the disappearance.

In this case, however, we need not decide what more the government would have been required to do after the defense was unable to find the informers at the given addresses. The defense did not report its lack of success to the court until after it rested and even then did not ask for aid nor press to interview or call the informers. And although the three agents had been in court, the defense did not ask to question them outside the presence of the jury either to elicit further leads or to show the government's bad faith or lack of diligence. The case is on all fours with the Second Circuit's recent decision in United States v. Super, 492 F.2d 319 (1974) where the defense

"did not seek to establish that the Government had failed to use reasonable diligence in its search for Lombardi. It did not seek to question the Government out of the presence of the jury in an effort to determine what search had been made or what search might be productive if a continuance were granted."

Indeed, counsel's report, when it came, of his own unsuccessful search was notably laconic. Given the vigor and sophistication of the defense in other respects, it is reasonable to conclude that strategic considerations played a role in the decision not to press for the informers' presence. The defense...