U.S. v. Godkins, 75--2068

• Decision Date: 03 March 1976
• Docket Number: No. 75--2068,75--2068
• Citation: 527 F.2d 1321
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth GODKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1321

527 F.2d 1321

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth GODKINS, Defendant-Appellant.

No. 75--2068.

United States Court of Appeals,

Fifth Circuit.

March 3, 1976.

Colbert N. Coldwell, El Paso, Tex. (Court appointed), for defendant-appellant.

John E. Clark, U.S. Atty., San Antonio, Tex., William B. Hardie, Jr., Ronald E. Ederer, Asst. U.S. Attys., El Paso, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before TUTTLE, GODBOLD and GEE, Circuit Judges:

TUTTLE, Circuit Judge:

This case involves the right of a criminal defendant to call as a witness at trial an alleged government informer whose identity is already known to the defendant. Because we believe that the district court misinterpreted the scope of the confidential informant's privilege originally announced by the Supreme Court in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), we reverse the conviction on the basis of the district court's refusal to allow appellant to call the alleged informer as a witness, and remand for a new trial.

Appellant Kenneth Godkins was convicted by a jury of violating federal narcotics statutes, 21 U.S.C. §§ 841(a)(1) and 846, by conspiring to possess, and possessing with intent to distribute, one ounce of cocaine. Prior to trial, Godkins moved to subpoena as a defense witness one John Doe, ¹ but the government objected on the grounds that granting the motion would lead to the disclosure of the identity of the confidential informer involved in the case. The trial court had initially entered an order authorizing the issuance of a subpoena to Doe and requiring the government to:

'disclose to Defendant's attorney any and all information that it has in its files pertaining to (John Doe), which bears or might tend to bear upon his credibility as a witness in this case. The Government is particularly required to provide information hereunder of cases of a similar nature to the transaction in this case, concerning other individuals, which information has proved, at least in part, to be untrue. Such information may be used by Defendant for impeachment of the witness, (John Doe.)'

However, when the trial commenced and, after conducting an in camera hearing on the motion and inspecting affidavits by three government agents bearing on the informer's identity and the degree of his involvement in the events at issue, the district court held that the confidential informer's privilege was applicable. The court forbade appellant, on pain of contempt, from producing Doe as a witness at trial. Furthermore, during the in camera hearing the judge prohibited any defense cross-examination of government agent Rochon on matters pertaining to the informer's identity, reliability, or the extent of his participation in the transaction at issue. Finally, the district court held that Godkins could not testify in camera as to the informer's identity (which Godkins alleged he already knew) without waiving his privilege against self-incrimination at trial. ² Thus effectively foreclosed from developing any evidence which could be used to support an entrapment defense (a possibility which Godkins' attorney had raised at the pre-trial hearing), appellant went to trial relying primarily on an insanity defense, which was rejected by the jury, and upon conviction received a fifteen-year sentence (with five years' special parole) on each count, with the sentences set to run concurrently.

Appellant has raised six points of error, four of which involve allegedly prejudicial statements made at trial either by a government witness or by the court itself and which will be dealt with first. The final two grounds urged for reversal involve rulings by the district court in the pre-trial hearing on the confidential informant's privilege, and are discussed last.

I. ALLEGED ERRORS OCCURRING AT TRIAL.

Appellant contends that certain statements made during the course of the trial require reversal of his conviction and the granting of a new trial. First, he alleges that the district court erred in admitting into evidence testimony concerning appellant's admission of a prior narcotics conviction. After testifying about the cocaine purchase he made from appellant, Agent Rochon described the conversation which followed the transaction. Rochon testified that appellant recommended using the mails, saying, 'It's the smart way of doing it. When I was younger I was stupid and they caught me flat with three ounces.' Appellant was also reported to have said (according to Rochon) that he would never go to jail again.

Appellant contends that the government elicited these statements in an attempt to prove prior similar crimes, and with the intent of obtaining a conviction for the crime charged in this proceeding. Given the fact that appellant's primary defense at trial was that of insanity, however, we find that Rochon's testimony was admissible to show appellant's state of mind and his knowledge that the acts he was committing were unlawful. Cf. United States v. Goodwin, 492 F.2d 1141, 1149 n. 5 (5th Cir. 1974); see generally McCormick on Evidence, § 249 at 591 (2d ed. 1972).

Appellant's second contention is that the district court erred in allowing into evidence the following testimony by Rochon:

'It began by Mr. Godkins telling me, 'I know what you are down here for, but would any of your people be interested in Mexican brown?"

Rochon then testified that at that point appellant Godkins offered him a substance identified by appellant as 'good' Mexican brown (street parlance for heroin). Appellant argues that this testimony was introduced by the government to 'blacken' him as a heroin dealer in the eyes of the jury. In light of appellant's previously-announced intention of possibly introducing evidence to establish an entrapment defense, however, the admission of the above statement was permissible to show a willingness or predisposition to deal in prohibited narcotic substances that would serve to negate an entrapment defense. Cf. United States v. Dickens, 524 F.2d 441 (5th Cir. 1975).

The third statement made by Rochon on the stand which is argued to constitute reversible error was the observation that appellant's co-conspirator, Richard Russell (who was not tried with appellant because he was still at large), appeared to be a 'runner' for appellant. The district court's admission of this statement is argued to have been prejudicial because without it the jury might have concluded that Russell was solely culpable for the crime at issue. We cannot agree with this reasoning. While Agent Rochon was not testifying as an expert witness, he was nevertheless familiar with the circumstances surrounding the negotiations for the sale of cocaine and had firsthand knowledge and observation of the relationship between appellant and his co-conspirator. Moreover, defense counsel had ample opportunity to cross-examine Rochon on his opinion in order to discredit it. In light of these considerations, we do not find the admission of Rochon's statement to be reversible error.

Appellant's final allegation of error at trial concerns a statement by the court during cross-examination of Rochon at a point when the government objected to a particular question by defense counsel. In response to the defense's statement that the question was designed to establish that the confidential informer was not necessarily reliable, the court stated:

'Well, he didn't apparently (furnish false information) in this case according to the government's case. I'll overrule that objection.'

Defense counsel objected to this comment by the court, and appellant now contends that the statement was highly prejudicial to his case and constituted reversible error. Appellant's argument, however, overlooks a number of important factors. First, as the government pointed out immediately after appellant's attorney objected to the court's remark the reliability or unreliability of the informer in this case is immaterial, since it has no bearing on whether appellant did in fact commit the offenses charged. Second, the court stated only that the informer furnished reliable information in this particular instance 'according to the government's case.' The use of this latter qualifying phrase clearly indicates that the reliability of the informer, if at all relevant, had not been established beyond a reasonable doubt, but that the government had simply put on evidence to show his reliability. Finally, the court's instructions during the jury charge to ignore its comments on any of the evidence was sufficient to cure any defect which may have occurred.

II. THE DISTRICT COURT'S IN CAMERA RULINGS.

The last two errors urged by appellant as grounds for reversal involve pre-trial rulings by the district court in an in camera hearing on appellant's motion to have John Doe produced at trial as a defense witness. Appellant contends that it was reversible error for the court to prohibit his attorney from cross-examining Agent Rochon as to the confidential informer's reliability, and to deny the motion to call Doe as a witness at trial. While we reject the first argument, we hold that it was error for the district court to deny appellant his Sixth Amendment right to call Doe as a witness.

With respect to the issue of limiting the scope of cross-examination of Agent Rochon in the in camera hearing, we do not find that the district court's refusal to allow questions pertaining to the confidential informer's reliability constituted reversible error. As noted before, the reliability of the informer in this case is irrelevant to the central issue of criminal liability: that is, whether appellant knowingly possessed (and/or conspired to possess) cocaine with the intent to distribute it. Moreover, appellant raised no Fourth Amendment issues with regard to which the informer's reliability might have been relevant. There was, for...