U.S. v. Estrella, 76-1494

• Decision Date: 27 December 1977
• Docket Number: No. 76-1494,76-1494
• Citation: 567 F.2d 1151
• Parties: UNITED STATES of America, Appellee, v. Luis Alicea ESTRELLA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1151

567 F.2d 1151

UNITED STATES of America, Appellee, v. Luis Alicea ESTRELLA, Defendant, Appellant.

No. 76-1494.

United States Court of Appeals First Circuit.

Submitted Sept. 29, 1977.

Decided Dec. 27, 1977.

Arthur D. Serota and Serota, Schuckman & Katz, Springfield, Mass., on brief, for defendant, appellant.

James N. Gabriel, U. S. Atty., and David P. Twomey, Asst. U. S. Atty., Boston, Mass., on brief, for appellee.

Before CAMPBELL, Circuit Judge, TUTTLE, Circuit Judge, ^* WOLLENBERG, District Judge. ^**

PER CURIAM.

Appellant Luis Alicea Estrella ¹ was convicted in the district court of possession with intent to distribute and distribution of heroin. He raises three issues in seeking reversal, none of which we find persuasive: the non-disclosure of an informant's identity; an alleged variance in the crimes charged in the arrest warrant and the indictment; and the sufficiency of the evidence in regard to Alicea's possession of the narcotics.

The evidence at trial would permit a jury to believe that Alicea distributed drugs through two accomplices, Santiago and Anastasio Bonilla Rivera. On the morning of the day in question, Alicea and Bonilla went to Alicea's apartment in Springfield, Massachusetts, where they met Santiago, who told them that she had a quarter ounce heroin sale set for 1:00 p. m. Alicea and Bonilla then drove to Alicea's home in Westfield, Massachusetts where Alicea measured out four quarter-ounce heroin packets, which he handed to Bonilla, instructing him that each portion was to be sold for $450.00. At some undisclosed time, Bonilla conveyed the price to Santiago. Alicea and Bonilla then drove back to the Springfield apartment, where Alicea remained while Bonilla drove to the housing project where the sale was to occur. There Bonilla transferred one of the heroin packets to Santiago. Santiago got into a car driven by government agent Diaz, and told Diaz to follow a designated car, which was owned by Alicea and was being driven by Bonilla. As they drove, Santiago and officer Diaz exchanged the heroin and $450.00. Both cars stopped, and Santiago left the government car and got into the one driven by Bonilla, where she turned over the $450.00 to Bonilla. Bonilla returned with Santiago to the apartment, where he delivered $435.00 to Alicea, keeping $15.00 for himself.

We turn first to the issue of the informant's identity. During the trial, it was brought out that a government informant made the initial arrangements for the sale between Santiago and officer Diaz, and was, besides Santiago and Diaz, an eyewitness to the final transfer of heroin for cash, having been in Diaz's car at the time. Defense counsel asked a government agent to name the informant, but the court sustained the Government's objection to revealing his identity. The prosecutor represented that there was danger to the person of the informant if his identity were revealed, and Alicea's counsel did not thereafter pursue the matter. Alicea now argues that Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), mandated disclosure of the informant's identity on the ground his "possible testimony was highly relevant and might have been helpful to the defense." Id. at 63-64, 77 S.Ct. at 629.

In Roviaro, the Supreme Court, although recognizing "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 the law," id. at 59, 77 S.Ct. at 627, ruled that the privilege was not absolute and must give way where fairness to the defendant required disclosure of the information sought to be protected. On the facts of that case, where the informant was the sole participant, other than the accused, in the transaction charged, failure to disclose constituted reversible error. The Court, however, refused to lay down hard and fast rules as to when the privilege must give way:

"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."

Id. at 62, 77 S.Ct. at 629. In subsequent cases the Court has emphasized the need to assess the particular circumstances of each case in determining the necessity of disclosure. See McCray v. Illinois, 386 U.S. 300, 311-14, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Rugendorf v. United States, 376 U.S. 528, 534-36, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964).

In assessing whether an assertion of the privilege was proper in a given case, courts have emphasized that mere speculation as to the usefulness of the informant's testimony to the defendant is insufficient to justify disclosure of his identity. United States v. Alvarez, 472 F.2d 111, 113 (9th Cir.), cert. denied, 412 U.S. 921, 93 S.Ct. 2742, 37 L.Ed.2d 148 (1973); United States v. Skeens, 145 U.S.App.D.C. 404, 449 F.2d 1066, 1070 (1971). The defendant must indicate some concrete circumstances that might justify overcoming both the public interest in encouraging the flow of information, see Roviaro, supra, and the informant's private interest in his own...