Gilmore v. United States, 16996.

• Decision Date: 23 June 1958
• Docket Number: No. 16996.,16996.
• Citation: 256 F.2d 565
• Parties: McCoy GILMORE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

256 F.2d 565 (1958)

McCoy GILMORE, Appellant, v. UNITED STATES of America, Appellee.

No. 16996.

United States Court of Appeals Fifth Circuit.

June 23, 1958.

William F. Walsh, Houston, Tex., Percy Foreman, Houston, Tex., counsel for appellant.

Donald F. McNiel, II, Asst. U. S. Atty., William B. Butler, U. S. Atty., Gordon J. Kroll, Asst. U. S. Atty., Houston, Tex., for appellee.

Before RIVES, CAMERON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This appeal from a conviction and subsequent sentence as a Boggs Act, 26 U.S. C.A. § 2557(b), multiple offender for unlawful sale of narcotics, 21 U.S.C.A. § 174, presents as the only substantial question the refusal of the Trial Court to require a Narcotics Agent to disclose the name of a non-paid informer, more euphemistically referred to as a "special employee."

The case was made by the prosecution entirely on the testimony of Agent Morris who made the alleged purchase. Defendant offered no testimony at all. There was ample evidence to sustain the jury verdict of guilty and to warrant the inferences discussed in our brief outline of the facts.

On the oral version recited by Agent Morris, the function of the undisclosed informer, whose governmentally-protected anonymity makes it convenient for us to refer to him as "Anonymous," may appear to have been superficial. In brief, the story was that Morris entered Turner's Tavern, a bar-like establishment in Houston, Texas, operated by Appellant Gilmore, and took a seat at a table. Anonymous, who was already in the Tavern at the bar, came over to the table, spoke a few words to Morris, walked away and returned to the bar. Defendant then approached the table and said to Morris that he had "heard all about you" and understood, from Anonymous, that Morris was a seaman. Whereupon Morris inquired if defendant could "do me any good" to which he replied, "Yes, I think I can."

Defendant, followed by Morris, then walked toward the rear door. The two talked there, during which conversation the deal was made for Morris to get a small number of caps immediately with a larger "buy" to be effected as soon as defendant contacted another. During part of this time, Anonymous was present. Morris then gave defendant $20.00 of marked official funds. Defendant left by the rear door and a few moments later returned through the front door and told Morris to "Look in the front seat of your car." Morris went there immediately and found four capsules containing the subsequently identified heroin.

But cross examination and the production pursuant to demand under 18 U.S. C.A. § 3500 of two written investigative report statements made by Morris and which were tendered, without objection, in complete form save for excision of Anonymous' name wherever it appeared in the text, revealed that Anonymous' function was not so limited. Anonymous had considerable to do in this claimed sale and purchase. First, it was he who set the stage. It was Anonymous who told defendant about Morris. Anonymous had described Morris as a seaman friend who was interested in obtaining some narcotics. Anonymous was already in the tavern when Morris arrived. When he arrived, Anonymous told Morris what he had said to the defendant. Shortly, defendant appeared and had the conversation previously described in which, of course, defendant treated with him as a seaman since he had, presumably from Anonymous, "heard all about you." Then, when Morris and defendant went toward the rear door, Anonymous joined the two of them. While Morris testified that all Anonymous did was to ask one of them for a cigarette, after which Anonymous then went to a phone booth, he had to acknowledge that Anonymous was present during part of that conversation and was in a position to have heard what was said. Whether he had heard, and had he, what part of it Anonymous had actually heard, Morris was, of course, unable to say.

Objection to revealing Anonymous' identity was solely on the ground of the so-called informer's privilege. We think, however, that under Portomene v. United States, 5 Cir., 221 F.2d 582; United States v. Conforti, 7 Cir., 200 F.2d 365; Sorrentino v. United States, 9 Cir., 163 F.2d 627, the correctness of which had precipitated the grant of certiorari with resulting approval of them in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 628, 1 L.Ed.2d 639, this testimony should have been permitted. It meets the more definitive declaration of Roviaro that "* * * whenever the informer's testimony may be relevant and helpful to the accused's defense," identity must be disclosed. At the same time, its application here comes within the spirit of the rule broadly laid down. "We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Roviaro v. United States, 353 U.S. 53, 61, 77 S.Ct. 623, at page 628, 1 L.Ed.2d 639, at page 645.

Here Anonymous had done more than merely inform or supply information. He was an active participant in setting the stage, in creating the atmosphere of confidence beforehand and in continuing it by his close presence during the moments of critical conversation. Moreover, in Morris's own version, defendant was tied into the narcotics shortly found on the front seat of his automobile only by the circumstance of the conversation in which Morris sought to buy and defendant agreed to sell a few caps. This made that conversation of critical importance. If what Morris said was said was said, it authorized the inference of possession which set in motion the whole train of statutory presumptions. 21 U.S. C.A. § 174. If no such conversation took place, or if it was substantially different, the inferences warranted might likewise be different, whether for jury resolution as a "fact" question or by the Court as one of law.

Here was a person affirmatively shown to have been within hearing distance who was an actual witness to the crucial part of this transaction. The conversation, both what was said, how it was said, and what was not said, presented matters of great materiality. It was of immediate relevancy. Not only did it bear on what sort of trade had been made, if indeed one had been made, but it bore directly on the other circumstances giving rise to the transaction and its consummation by the "finding" of the capsules in the Agent's car. These matters would include the motive and interest of Anonymous. Since his identity was protected and cross examination of Morris on these matters produced only a negative "I don't know" response, defendant was denied the opportunity of determining the interest and motives of Anonymous. The jury might well have considered it important in passing on credibility to know whether charges (indictment, information or bureau complaint) were or were not then pending against Anonymous, whether immunity or preference had been promised him if he undertook to work up or work on other cases, whether he was an addict, whether he had previously known defendant or had dealings with him that might have given rise to the hope of vengeance, and the like.

As Anonymous was a principal actor before and during this performance, who he was and what he knew was certainly material and relevant. In this testimony there might have been the seeds of innocence, of substantial doubt, or overwhelming corroboration. As the inferences from it covered the full spectrum from innocence to guilt, the process of truth-finding, which should be the aim of every trial, compelled its disclosure.

Since excising Anonymous' name from the investigative statement reports tendered under 18 U.S.C.A. § 3500 was merely a subsidiary ruling consistent with the primary ruling that no disclosure, orally or in writing, would be permitted, we need not discuss this phase separately. On a retrial the name must be given and since the statements were otherwise complete and tendered into evidence without limitation, to include the informer's name will now be a matter of course.

This leaves only the point that the Court erred in sustaining the Government's motion to quash the subpoena duces tecum issued on the eve of trial and returnable at its commencement. By its terms the local Narcotic Agent in Charge (not Morris) was ordered to produce "* * * all currently effective regulations, orders, bulletins, field manuals, policy letters or other matter of a directive nature promulgated by your superiors in the Federal Bureau of Narcotics, however styled or described within that Bureau, which are in your possession or subject to your control."

There was certainly no abuse of the Court's discretion shown here. To the Trial Judge's statement that "The defendant is not entitled to inquire into the inner workings of the office of the Bureau of Narcotics," the defendant's brief makes the retort: "Why not? This appellant asks." Our answer is that subpoena duces tecum is not a discovery weapon as such, although it may perhaps at times be in aid of discovery made under Rule 16. Cf. United States v. Bennethum, D.C.Del., 21 F.R.D. 227. Rule 17(c), Federal Rules of Criminal Procedure, 18 U.S.C.A., relates only to the production of documentary evidence and objects. The Rule contemplates, in its broader sense, "* * * any document or other materials, admissible as evidence, * * *," Bowman Dairy Co. v. United States, 341 U.S. 214, 221, 71 S.Ct. 675, 679, 95 L.Ed. 879, 885.

Neither here nor in the companion case where it was more fully developed (and incorporated in the trial proceedings and record by consent of the Court and all counsel) was any showing made...