Amaya v. United States
| Citation | 373 F.2d 197 |
| Decision Date | 13 February 1967 |
| Docket Number | No. 9119.,9119. |
| Parties | Hector Saldivar AMAYA, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Juan G. Burciaga, Albuquerque, N. M., for appellant.
John Quinn, Albuquerque, N. M. (John A. Babington, Albuquerque, N. M., with him on brief), for appellee.
Before MURRAH, Chief Judge, and HILL and SETH, Circuit Judges.
On this appeal from conviction and sentence for violation of the narcotic laws, 21 U.S.C. § 174, 26 U.S.C. § 4705(a), appellant complains of the insufficiency of the government's evidence based in part on the testimony of a paid government informer.
The government's case follows the familiar pattern of cases of this kind in which enforcement agents search the informer's car and person and provide him with funds with which to purchase narcotics. There was evidence in this case that the two purchases were made under surveillance by the officers from a vantage point. After each purchase, the informer was followed to a rendezvous where he and his car were searched. The money was missing and the narcotics were found in his possession.
Appellant does not deny receiving the amount of purchase money provided for the transaction covered in Counts 1 and 2 of the indictment, nor does he deny having delivered to the informer the narcotics later found in his possession. He simply says he did not know the package he delivered to the informer was in fact narcotics. With respect to Counts 3 and 4, he does not deny the alleged contact with the informer, but he does deny that what he delivered to the informer under surveillance by the officers was narcotics. Instead, he contends and testified that he delivered merely a piece of paper on which was written a name and address. There was evidence tending to corroborate his testimony with respect to both transactions — testimony which, if believed by the jury, would have exonerated the appellant. The jury, however, chose to believe the incriminating testimony of the informer as corroborated by the testimony of the enforcement officers. The critical testimony of the informer is said to be totally unreliable and should be disregarded.
While the use of informers in criminal cases has been often criticized, their testimony has never been outlawed as competent evidence when admitted with instructions "calculated to call attention to the character of the testimony of the informer, leaving to the jury the ultimate question of value and credibility." Todd v. United States, 345 F.2d 299; see also Hoffa v. United States, decided December 12, 1966, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374. In unchallenged language the court instructed the jury that the informer's testimony should be considered "with caution and weighed with great care". Under these instructions, the weight of the informer's testimony was properly left to the jury.
Error is also assigned for refusal of the court to instruct the jury as requested on "possession" as that term is used in § 174 to authorize a...
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