Lopez-Hernandez v. United States
| Decision Date | 10 May 1968 |
| Docket Number | No. 21750.,21750. |
| Citation | 394 F.2d 820 |
| Parties | Marco Antonio LOPEZ-HERNANDEZ, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jerry E. Berg, San Jose, Cal., for appellant.
Edward E. Davis, U. S. Atty., Jo Ann D. Diamos, Asst. U. S. Atty., Tucson, Ariz., for appellee.
Before HAMLEY and ELY, Circuit Judges, and WEIGEL, District Judge.
Appellant was charged with the violation of 21 U.S.C. § 174 in having fraudulently and knowingly imported a quantity of heroin into the United States from Mexico. He appeals from a judgment of conviction entered after trial to a jury in the District Court. We reverse.
Appellant alleges that the District Court committed prejudicial error in refusing to require the Government to reveal the identity of an informant. Additionally, appellant urges that the evidence was insufficient to support his conviction.
On June 19, 1966, six United States Customs Agents and Arizona State Officers secreted themselves near a point on the International Boundary near Nogales, Arizona. Shortly thereafter, Customs Agent Washington, accompanied by the unidentified informant, arrived at the scene. There the two met with appellant. There was testimony that appellant asked Washington "if he had the money," whereupon Washington led the appellant to Washington's parked vehicle and showed him $5,000 in cash. Appellant then crossed the border into Mexico, conferred with a companion, and returned to the spot where Washington waited. Washington testified that appellant then produced a small rubber contraceptive, representing that it contained heroin. At that point the concealed officers revealed themselves and took appellant into custody.
The trial commenced in November 1966. On the second day of trial, during cross-examination of Customs Agent Cavitt, one of the arresting officers, appellant requested that the identity of the informant be disclosed. There was objection to the request on the ground of immateriality. The objection was sustained. During subsequent cross-examination of Customs Investigator Turner, another of the arresting officers, appellant again requested that the Government be required to reveal the informant's identity. Again an objection as to materiality was sustained. When counsel explained that the informant was an eyewitness whose testimony was material, the court then ruled that the request was untimely.
In light of the extent of the informant's participation in the events culminating in appellant's arrest and his presence as a witness, it cannot be said that disclosure of his identity would not have been "relevant and helpful" to appellant's defense. Roviaro v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957...
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Hawkins v. Robinson
...been required where the informant was an active participant or was present at the scene of the crime. See, e.g., Lopez-Hernandez v. United States, 394 F.2d 820 (9th Cir. 1968); United States v. Roberts, 388 F.2d 646, 648-649 (2d Cir. 1968); Gilmore v. United States, 256 F.2d 565, 566-567 (5......
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Com. v. Bradshaw
...could provide testimony that would be relevant to the activities or negotiations that preceded the sale. See also Lopez-Hernandez v. United States, 394 F.2d 820 (9th Cir. 1968); Gilmore v. United States, 256 F.2d 565 (5th Cir. 1958). Thus it is not a sine qua non to disclosure that the info......
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State v. Milligan
...supra, 118 N.J.Super. 22, 285 A.2d 564; 6 Gilmore v. United States, 256 F.2d 565 (5 Cir. 1958). See also Lopez-Hernandez v. United States, 394 F.2d 820 (9 Cir. 1968); Commonwealth v. Ennis, 301 N.E.2d 589, 591 (Mass.App.1973); Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (Sup.Ct.1972); St......
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Whitaker v. Garcetti
...information must be revealed. Roviaro v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Lopez-Hernandez v. United States, 394 F.2d 820, 821 (9th Cir.1968). Thus, the concealment involved in confidential informant cases is (1) limited to the identity of the informant (ra......