U.S. v. Hernandez

• Citation: 608 F.2d 741
• Decision Date: 12 October 1979
• Docket Number: 77-3649,77-3864 and 77-3865,Nos. 77-3648,s. 77-3648
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Ramon HERNANDEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jesus Antonio GASTELUM, charged as Raymond Sepulveda Mendoza, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jorge MEJIA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Javier GOMEZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 741

608 F.2d 741

UNITED STATES of America, Plaintiff-Appellee, v. Juan Ramon HERNANDEZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jesus Antonio GASTELUM, charged as Raymond Sepulveda

Mendoza, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jorge MEJIA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Javier GOMEZ, Defendant-Appellant.

Nos. 77-3648, 77-3649, 77-3864 and 77-3865.

United States Court of Appeals,

Ninth Circuit.

Oct. 12, 1979.

Rehearing Denied in No. 77-3648 Dec. 12, 1979.

Barry Tarlow (argued), Carson Taylor (argued), Taylor, Roth & Grant, Rudolph A. Diaz (argued), Richard Fannan (argued), Eric Multhaup, Los Angeles, for defendants-appellants.

Andrea Sheridan Ondin, U. S. Atty. (argued), Mark O. Heany, Asst. U. S. Atty. (argued), Los Angeles, Cal., for the U. S.

Appeal from the United States District Court for the Central District of California.

Before ELY and WALLACE, Circuit Judges, and FOLEY, ^* District Judge.

ELY, Circuit Judge:

Appellants, along with two other individuals, were convicted by a jury on charges of having engaged in a heroin distribution scheme. ¹ Appellants now raise several issues which they contend compel reversal of their convictions and a new trial. The issues are: (1) whether appellants were entitled to pre-trial disclosure of the address of a government informant, and whether, upon ascertaining that address at trial, the appellants were entitled to a continuance in order to conduct an investigation into the background of the informant, (2) whether the exclusion of the public from the courtroom during a portion of the trial denied appellants of their Sixth Amendment right to a public trial, (3) whether the District Court erred in allowing selective use of co-defendant Hernandez' post-arrest statement against Gomez and Mejia, and (4) whether the evidence entitled Hernandez to an instruction as to his asserted defense of duress. We affirm.

I.

Appellants, together with two men named Perez and Sota were charged with conspiring to sell a large quantity of heroin, and with consummating such a sale, to government undercover agents. According to the prosecution's evidence, one Smith, an informant for the Drug Enforcement Administration (DEA) and the principal witness establishing the existence of a conspiracy, was contacted by Mejia to assist in locating a buyer for narcotics. Smith arranged a sale of heroin to the government agents after obtaining a sample of the drug and turning it over to law enforcement officers for testing. The appellants and Sota were arrested at the scene of the alleged sale after handing the arresting officers a bag containing what tests established to be three-and-one-half pounds of heroin. Perez was arrested at a residence that surveillance revealed to be frequented by the alleged conspirators and at which ten additional pounds of heroin were seized.

II. PRE-TRIAL DISCLOSURE

Appellants filed a pre-trial motion seeking the address of Smith, the principal witness, so that they could conduct an investigation into Smith's background. The District Court declined to order pre-trial disclosure of the address, acting on the basis of an affidavit that detailed the existence of threats against Smith and his family. ² The trial judge also refused to conduct an evidentiary hearing on the matter at that time.

At trial, the requested evidentiary hearing was held after Smith had completed his direct testimony. That hearing resulted in an order requiring Smith to disclose his address to appellants on cross-examination. Appellants promptly sought a two-week continuance in order to commence an investigation of Smith. The District Court refused to delay the trial. Appellants now argue that the District Court's denial of their motion for pre-trial disclosure and their motion for a continuance deprived them of their right to prepare an adequate defense.

In light of Smith's role in the narcotics transaction with which appellants were charged, it cannot be said that disclosure of Smith's Identity would not have been "relevant or helpful" to the appellant's defense. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). See Lopez-Hernandez v. United States, 394 F.2d 820, 821 (9th Cir. 1968). The Government has so argued, recognizing the distinction that our decisions have drawn between those situations wherein an informant's role was merely peripheral (See United States v. Connolly, 479 F.2d 930, 933 (9th Cir. 1973), and, in contrast, those situations wherein the informant actually witnessed the crime, or, as here, even helped instigate the criminal transaction (See United States v. Cervantes, 542 F.2d 773, 775 (9th Cir. 1976); United States v. Miramon, 443 F.2d 361, 362 (9th Cir. 1971); Lopez-Hernandez v. United States, supra, 394 F.2d at 821). Because Appellants knew, prior to trial, that Smith was the government informant and that the Government was under court order to make Smith available to them for interviews if Smith was so willing. Smith, however, refused to be interviewed. Though Smith's address was withheld from appellants prior to trial, it was revealed on cross-examination.

Smith was a participant in the events that were critical to the prosecution's case, no claim could be raised under Roviaro, nor was it raised, that Smith's identity could be lawfully withheld from the appellants.

We recognize that the address of a principal witness, as Smith most assuredly was, is an integral element of identity for without such information, little meaningful inquiry can be made into background information affecting credibility. Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); Alford v. United States, 282 U.S. 687, 693, 51 S.Ct. 77, 75 L.Ed. 736 (1931).

We are now urged to hold that it was reversible error to withhold Smith's full identity from the appellants, including Smith's address, until the time of his cross-examination. We decline to make such a holding under the facts of this case. Appellants' reliance upon Smith v. Illinois, supra, for the proposition that they were entitled to pre-trial disclosure of the informant's address is misplaced. In cases such as Smith, the Court found reversible error in the trial court's refusal to allow cross-examination into an informant's address. Unlike the situations presented in Smith and in Alford, the scope of cross-examination was not here curtailed.

The facts here are likewise distinguishable from those in our own case of United States v. Harris, 501 F.2d 1 (9th Cir. 1974), wherein we found error in the unsupported refusal to allow any inquiry into an informant's residence. In Harris, we were faced with a situation where at no time during trial did the Government indicate to the court that the informant testifying would be in any danger if his address were revealed on cross-examination. We recognized that "in some instances the trial court could legitimately permit the witness not to disclose his residence" on cross-examination. Id. at 9. ³ Such nondisclosure of an informant's address would be justified, we said, where the answer might subject the witness to harassment, humiliation, or danger. Id. We insisted, however, that curtailment of cross-examination into an informant's address must be supported by some indication, provided either by the Government or the witness, why open-court disclosure should be prevented. Id. We did not decide whether an evidentiary hearing, or even a sworn affidavit, would be required to justify nondisclosure. Appellants claim that the In camera affidavit submitted here, detailing threats made against both Smith and his family, was insufficient indication, as required by Harris, and that an evidentiary hearing was required.

In this appeal, there is no need to decide just what quantum or quality of evidence is necessary to justify nondisclosure of an informant's address on cross-examination. This is because the appellants were allowed full cross-examination and did learn Smith's address. Furthermore, we question whether Harris can be extended so as to reach to requests for pre-trial disclosure of an informant's address. We do hold that the trial judge was justified in relying on the sworn affidavit before him when he refused to order the disclosure prior to trial. It follows A fortiori that if a court could properly curtail cross-examination into an informant's residence because of demonstrated danger to his physical safety, it would not be error to refuse such disclosure prior to trial. It is no secret that informers whose identities are revealed prior to trial are often "among the missing" when the trial date finally arrives. See United States v. Pennick, 500 F.2d 184, 186 (10th Cir. 1974), Cert. denied, 419 U.S. 1051, 95 S.Ct. 629, 42 L.Ed.2d 647 (1974). While an evidentiary

hearing might be the better practice, we will not hold here that it was reversible error for the District Court to have based its determination upon the sworn affidavit before it.

III. CONTINUANCE

Next, appellants complain that their ability to prepare an adequate defense was prevented when the District Court denied their motion for a two-week continuance which would have enabled them to investigate Smith's reputation among his neighbors. Appellants cannot claim that they were unaware of the substance of Smith's testimony, his arrest record, or his prior history of drug dealings. This information was revealed during extensive discovery prior to trial. Furthermore, Smith's address was provided to appellants at trial on Tuesday, August 9th. Evidence was still being presented through the following Thursday, August 18th. Appellants had ample opportunity to cross-examine Smith and make inquiry of Smith's neighbors during trial.

The District Court has broad discretion in granting or denying a continuance, and that decision is not subject to review unless it is clearly shown that the involved...