Little v. United States, 73-1410.

• Decision Date: 01 February 1974
• Docket Number: No. 73-1410.,73-1410.
• Citation: 490 F.2d 686
• Parties: Walter Floyd LITTLE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

490 F.2d 686 (1974)

Walter Floyd LITTLE, Appellant, v. UNITED STATES of America, Appellee.

No. 73-1410.

United States Court of Appeals, Eighth Circuit.

Submitted January 15, 1974.

Decided February 1, 1974.

Ben Ely, Jr., of Kortenhof & Ely, St. Louis, Mo., for appellant.

Richard Coffin, Sp. Atty., U. S. Dept. of Justice, St. Louis, Mo., for appellee.

Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and SMITH, Senior District Judge.^*

MATTHES, Senior Circuit Judge.

Appellant was indicted, tried and found guilty of distributing heroin on October 2, 1972, and again on October 11, 1972. He has appealed from the judgment of conviction.

There is no controversy over the evidence produced by the government at the trial. Appellant did not testify and offered no witnesses in his behalf. The transactions followed the pattern which has become a common practice in apprehending and prosecuting persons who unlawfully distribute controlled substances. The government informer in this case, Charles Bullock, purchased heroin on each occasion from appellant. Before the purchase, one or more officers attached to the office of Drug Abuse Law Enforcement (DALE) searched Bullock and gave him a stated amount of currency, the serial numbers thereon having been recorded. Bullock then contacted appellant and made the purchase under the surveillance of DALE officers. In due time the indictment was returned and the prosecution followed.

Appellant vigorously contends that he was denied a fair trial because the government failed to produce Bullock at the trial in accordance with the prior assurance of the Assistant District Attorney that Bullock would be present and available for examination by appellant's counsel. At the outset of the trial, which was scheduled for April 16, 1973, but which began the next day, April 17, a thorough examination of two of the officers who participated in the purchases revealed that they undertook a diligent search for Bullock several days prior to the scheduled trial date, but their efforts to locate him were unsuccessful. Thereupon, the court denied appellant's motion for a mistrial and the trial proceeded.

After the appeal had been docketed in this court, the United States Attorney, acting pursuant to our action in United States v. Pollard, 479 F.2d 310 (8th Cir. 1973); United States v. Kitchen, 480 F.2d 1222 (8th Cir. 1973); and United States v. Barnes, 486 F.2d 776 (8th Cir. 1973), filed a motion for a limited remand of the case to the district court to enable that court to conduct an evidentiary hearing for the purpose of determining whether the government deliberately concealed Bullock and whether appellant was prejudiced by his inability to examine Bullock before the jury. The government's motion to remand was granted, and on December 6, 1973, the district court heard the sworn testimony of the Assistant United States Attorney, who had prosecuted the case, and Charles Bullock, the informer. Appellant and his trial attorney were present, and appellant's attorney extensively cross-examined the witnesses. After the hearing, the district judge, acting pursuant to our order of remand, made supplemental findings and transmitted his findings and the transcript of the December 6 hearing to this court. In pertinent part, the court found that the government did not deliberately conceal any exculpatory information possessed by Bullock; that a subpoena for him had been prepared at the direction of the prosecutor; that officers attempted to locate Bullock and to serve the subpoena upon him, but their efforts were fruitless; that Bullock did not possess any evidence...