Roviaro v. United States, No. 58

• Court: United States Supreme Court
• Writing for the Court: BURTON
• Citation: 77 S.Ct. 623,353 U.S. 53,1 L.Ed.2d 639
• Parties: Albert ROVIARO, Petitioner, v. UNITED STATES of America
• Docket Number: No. 58
• Decision Date: 25 March 1957

353 U.S. 53 77 S.Ct. 623 1 L.Ed.2d 639 Albert ROVIARO, Petitioner,

v.

UNITED STATES of America.

No. 58. Argued Dec. 11, 1956. Decided March 25, 1957.

Mr.

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Maurice J. Walsh, Chicago, Ill., for petitioner.

Mr. James W. Kanpp, Washington, D.C., for respondent.

Mr. Justice BURTON delivered the opinion of the Court.

This case concerns a conviction for violation of the Narcotic Drugs Import and Export Act, as amended.¹

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The principal issue is whether the United States District Court committed reversible error when it allowed the Government to refuse to disclose the identity of an undercover employee who had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged. For the reasons hereafter stated, we hold that, under the circumstances here present, this was reversible error.

In 1955, in the Northern District of Illinois, petitioner, Albert Roviaro, was indicted on two counts by a federal grand jury. The first count charged that on August 12, 1954, at Chicago, Illinois, he sold heroin to one 'John Doe' in violation of 26 U.S.C. § 2554(a), 26 U.S.C.A. § 2554(a). The second charged that on the same date and in the same city he 'did then and there fraudulently and knowingly receive, conceal, buy and facilitate the transportation and concealment after importation of . . . heroin, knowing the same to be imported into the United States contrary to law; in violation of Section 174, Title 21, United States Code.'

Before trial, petitioner moved for a bill of particulars requesting, among other things, the name, address and occupation of 'John Doe.' The Government objected on the ground that John Doe was an informer and that his identity was privileged. The motion was denied.

Petitioner, who was represented by counsel, waived a jury and was tried by the District Court. During the trial John Doe's part in the charged transaction was described by government witnesses, and counsel for petitioner, in cross-examining them, sought repeatedly to learn John Doe's identity. The court declined to permit this cross-examination and John Doe was not produced, identified, or otherwise made available. Petitioner was

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found guilty on both counts and was sentenced to two years' imprisonment and a fine of $5 on each count, the sentences to run concurrently.² The Court of Appeals sustained the conviction, holding that the concurrent sentence was supported by the conviction on Count 2 and that the trial court had not abused its discretion in denying petitioner's requests for disclosure of Doe's identity. 7 Cir., 229 F.2d 812. We granted certiorari, 351 U.S. 936, 76 S.Ct. 834, 100 L.Ed. 1464, in order to pass upon the propriety of the nondisclosure of the informer's identity and to consider an alleged conflict with Portomene v. United States, 5 Cir., 221 F.2d 582; United States v. Conforti, 7 Cir., 200 F.2d 365; and Sorrentino v. United States, 9 Cir., 163 F.2d 627.

At the trial, the Government relied on the testimony of two federal narcotics agents, Durham and Fields, and two Chicago police officers, Bryson and Sims, each of whom knew petitioner by sight. On the night of August 12, 1954, these four officers met at 75th Street and Prairie Avenue in Chicago with an informer described only as John Doe.³ Doe and his Cadillac car were searched and no narcotics were found. Bryson secreted himself in the trunk of Doe's Cadillac, taking with him a device with which to raise the trunk lid from the inside. Doe then drove the Cadillac to 70th Place and St. Lawrence Avenue, followed by Durham in one government car and Field and Sims in another. After an hour's wait, at about 11 o'clock, petitioner arrived in a Pontiac, accompanied by an un-

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identified man. Petitioner immediately entered Doe's Cadillac, taking a front seat beside Doe. They then proceeded by a circuitous route to 74th Street near Champlain Avenue. Both government cars trailed the Cadillac but only the one driven by Durham managed to follow it to 74th Street. When the Cadillac came to a stop on 74th Street, Durham stepped out of his car onto the sidewalk and saw petitioner alight from the Cadillac about 100 feet away. Durham saw petitioner walk a few feet to a nearby tree, pick up a small package, return to the open right front door of the Cadillac, mack a motion as if depositing the package in the car, and then wave to Doe and walk way. Durham went immediately to the Cadillac and recovered a package from the floor. He signaled to Bryson to come out of the trunk and then walked down the street in time to see petitioner re-enter the Pontiac, parked nearby, and ride away.

Meanwhile, Bryson, concealed in the trunk of the Cadillac, had heard a conversation between John Doe and petitioner after the latter had entered the car. He heard petitioner greet John Doe and direct him where to drive. At one point, petitioner admonished him to pull over to the curb, cut the motor, and turn out the lights so as to lose a 'tail.' He then told him to continue 'further down.' Petitioner asked about money Doe owed him. He advised Doe that he had brought him 'three pieces this time.' When Bryson heard Doe being ordered to stop the car, he raised the lid of the trunk slightly. After the car stopped, he saw petitioner walk to a tree, pick up a package, and return toward the car. He heard petitioner say, 'Here it is,' and 'I'll call you in a couple of days.' Shortly thereafter he heard Durham's signal to come out and emerged from the trunk to find Durham holding a small package found to contain three glassine envelopes containing a white powder.

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A field test of the powder having indicated that it contained an opium derivative, the officers, at about 12:30 a.m., arrested petitioner at his home and took him, along with Doe, to Chicago police headquarters. There petitioner was confronted with Doe, who denied that he knew or had ever seen petitioner. ⁴ Subsequent chemical analysis revealed that the powder contained heroin.

I.

Petitioner contends that the trial court erred in upholding the right of the Government to withhold the identity of John Doe. He argues that Doe was an active participant in the illegal activity charged and that, therefore, the Government could not withhold his identity, his whereabouts, and whether he was alive or dead at the time of trial.⁵ The Government does not defend the nondisclosure of Doe's identity with respect to Count 1, which charged a sale of heroin to John Doe, but it attempts to sustain the judgment on the basis of the con-

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viction on Count 2, charging illegal transportation of narcotics.⁶ It argues that the conviction on Count 2 may properly be upheld since the identity of the informer, in the circumstances of this case, had no real bearing on that charge and is therefore privileged.

What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151; In re Quarles and Butler, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080; Vogel v. Gruaz, 110 U.S. 311, 316, 4 S.Ct. 12, 14, 28 L.Ed. 158. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.

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The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged.⁷ Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.⁸

A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful

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to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.⁹ In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.¹⁰ Most of the federal cases involving this limitation on the scope of the informer's privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.¹¹

Three recent cases in the Courts of Appeals have involved the identical problem raised here—the Government's right to withhold the identity of an informer who helped to set up the commission of the crime and who was present at its occurrence. 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. In each case it was stated that the identity of such an informer must be disclosed whenever the informer's testi-

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mony may be relevant and helpful to the accused's defense.¹²

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...