U.S. v. Hart, s. 74-3001

• Citation: 546 F.2d 798
• Decision Date: 22 July 1976
• Docket Number: Nos. 74-3001,74-3270,s. 74-3001
• Parties: UNITED STATES of America, Appellee, v. Robert Dale HART, Appellant. UNITED STATES of America, Appellee, v. Ruben Morales ROBLES, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 798

546 F.2d 798

UNITED STATES of America, Appellee, v. Robert Dale HART, Appellant.

UNITED STATES of America, Appellee, v. Ruben Morales ROBLES, Appellant.

Nos. 74-3001, 74-3270.

United States Court of Appeals, Ninth Circuit.

July 22, 1976.

Rehearing and Rehearing En Banc Denied Aug. 19, 1976.

Louis L. Deckter (argued), Tucson, Ariz., for appellant in 74-3001.

Michael J. Brown (argued), Tucson, Ariz., for appellant in 74-3270.

William C. Smitherman (argued), U. S. Atty., James E. Mueller (argued), Asst. U. S. Atty., Tucson, Ariz., for appellee.

Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED, and KENNEDY, Circuit Judges.

TRASK, Circuit Judge:

Hart and Robles appeal their convictions for distributing cocaine in violation of 21 U.S.C. § 841(a)(1). The appellants, who were tried separately, sold cocaine to government agents pursuant to arrangements made by paid informants. Their only defense was entrapment.

The appeal presents two questions: (1) Did the district court err in denying the appellants' respective motions to continue for failure of the government to produce the informant Murrieta, who was the key figure in the sale and upon whom the appellants depended to prove their entrapment defenses? (2) Did the district court err in foreclosing Robles from raising the entrapment defense because he refused to take the stand and there to admit the offense?

I.

The court took this case en banc to determine whether the government was a "guarantor" of the presence of an informant at the trial of a case in which he had been used. We hold that it is not, and adhere to the rule that the government must use reasonable efforts to produce a government informant whose presence has been properly requested by the defendant. United States v. Leon, 487 F.2d 389 (9th Cir. 1973); United States v. Jenkins, 470 F.2d 1061 (9th Cir. 1972); Tapia-Corona v. United States, 369 F.2d 366 (9th Cir. 1966); Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir. 1965).

The record discloses the essential facts. The government availed itself of the services of two Mexican nationals in the development of the case against the appellants. Their names were Borjorquez and Murrieta. The arrest and the trial took place in Tucson and the court ordered that the government agent, Lugo, "make effort to locate informants and procure their presence at trial." Borjorquez was produced for interview on July 25 prior to the scheduled August 13 trial of appellant Hart to be followed immediately by the August 14 trial of Robles. He was questioned in the courtroom with the court interpreter assisting, and with the judge announcing his availability if required. Borjorquez identified both himself and Murrieta as being residents of Magdalena, Sonora, Mexico. He further explained that Murrieta "has a little store, a general merchandise store" where he sells groceries and gave the street intersection where the store was located. He stated that Murrieta did not come for the interview "because he's ill and apparently in pain."

On August 12, a hearing was held on a motion to continue because Murrieta, who by then had developed as the only knowledgeable informer, had not appeared for interview or for trial. Special Agent Charles Lugo of the Drug Enforcement Administration was questioned under oath. He testified that his contact had principally been by telephone conversations initiated by Murrieta or Borjorquez. He stated that he had talked to them at least a dozen times between July 9 and August 12, telling them they would have to be present for the trial. He talked to them at least six times after Borjorquez had appeared for his interview on July 25. At no time did either indicate he would not be present. The last time he conversed with them was on Sunday, August 11, when they called from Santa Ana, Mexico. They assured him then, as they had before, that they would be in Tucson for pretrial interview on the following day, Monday, and for the trial on Tuesday.

At the conclusion of this evidentiary hearing on Monday the trial court denied the motion to continue with leave to renew it on Tuesday if Murrieta still had not appeared. On Tuesday, the day of trial, Murrieta had not arrived and a further hearing was held. Lugo told the court he had received a telephone call from Borjorquez after he returned to his office on Monday following the evidentiary hearing. Lugo related he had told Borjorquez in very strong terms to get Murrieta and come to Tucson at once. He also told them to call him from Nogales, at the border, and that he (Lugo) would pick them up and drive them to Tucson. He had received no further word.

Lugo also amplified his testimony regarding employment of informants by explaining that when they are "first documented as informants" they are advised that the DEA requires that if they participate in a case in any way and are asked to testify they must be present to testify. "That's one of the requirements for informants." ¹ He further stated that to his knowledge neither had been in the United States and available to subpoena, since the Borjorquez interview on July 25. On one occasion he had sent $20 to them to come up but they had not done so. The court denied the motion for a continuance and the motion to dismiss as to each defendant. ²

It was suggested at oral argument that Murrieta could have been "detained" as a material witness when he appeared and testified for the government as an informant in a case in mid-May of the same year that was tried in the United States District Court in Tucson. This is probably correct. See United States v. Verduzco-Macias, 463 F.2d 105 (9th Cir. 1972); Bacon v. United States, 449 F.2d 933 (9th Cir. 1971). At least some inducement such as retention of a portion of the reward until the case was closed, could have been made. But this case is not akin to Bacon or Verduzco-Macias. There the putative witnesses were fugitives; they had not only shown a disinclination to cooperate but the Mexican aliens were subject to possible imprisonment should the government have wished to indict and prosecute. Every self-interest was on the side of their fleeing the jurisdiction. Here, Murrieta up to that mid-May (the date of his last physical presence in the United States) had always been cooperative. He had promised to testify in court in May in a narcotics case and had appeared and testified as he had promised. He had not at that time refused to cooperate in any respect so far as the record shows. Neither had he failed to keep any commitment to testify. Had he been taken into custody at that time when there was no apparent reason to distrust him, he might well have been a very unhappy witness to be kept away from his home, his family and his business from mid-May until mid-August. It was also argued that the government might have withheld a portion of his reward. Again, he had presumably been paid before and had still cooperated. Under the Department's requirements to be available to testify he still risked the loss of future rewards if he failed to appear when requested. Was there any reason as a matter of foresight for Lugo to believe that this case was different?

The dissent acknowledges that the government must only use reasonable efforts to produce the informant. Part of the difference between the majority rationale and the dissent is the point at which "reasonable effort" is to be judged. We believe it to be as of the time the government is exerting its efforts to obtain the attendance of the witness, taking into consideration the background of performance and attitude of the desired witness as of that time. That would ordinarily be after the trial date had been established and as the case was progressing to the actual finalized trial date. At the time Murrieta was last in the United States as far as the evidence shows, (mid-May before the August 13 trial date) the trial date had not been established finally. Certainly as of that time there was no reason to suspect that future performance would be any less than the 100 percent performance of the past.

After Murrieta had returned to Mexico there was nothing to do but to accept his promises as given with the expectation that he would fulfill them, together with the inducements of expense money and travel assistance. As of now the record is, of course, silent as to whether Murrieta was on his way, met with accident, remained ill or otherwise unable to fulfill his promise or whether he was simply recalcitrant. Just as ex post facto verification of the correctness of a tip from an informer by discovery of the contraband does not justify a finding of probable cause based upon the tip alone, United States v. Moreno-Buelna, 524 F.2d 1129, 1133 (9th Cir. 1975), (Hufstedler, J., dissenting), so, too, in this case, the view from perfect hindsight disclosing that an informer did not in fact show up for a trial, does not thereby establish conclusively that there was no reasonable effort made to produce him, or by him to appear.

All of which brings us to the all important consideration of the function of the trial judge at this point and the effect of his determination. His finding was that the government had met its burden. "They've done everything reasonably necessary and proper that they could be required to do lawfully, to get these witnesses here." The trial court had held two evidentiary hearings before making this determination. We hold that the trial court's finding should be sustained unless clearly erroneous and that it was not clearly erroneous under these circumstances.

This court sitting en banc held in United States v. Page, 302 F.2d 81 (1962), that the clearly erroneous rule applied in criminal cases by analogy to Rule 52(a), Fed.R.Civ.P., when the trial court rules upon the admissibility of evidence in the face of a motion to suppress. The motion to suppress was based upon the contention that a...