U.S. v. Gonzales

• Decision Date: 05 November 1979
• Docket Number: No. 79-5254,79-5254
• Citation: 606 F.2d 70
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Felipe GONZALES and Vincente Rodriguez Ovalle, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 70

606 F.2d 70

UNITED STATES of America, Plaintiff-Appellee, v. Felipe GONZALES and Vincente Rodriguez Ovalle, Defendants-Appellants.

No. 79-5254.

United States Court of Appeals, Fifth Circuit.

Nov. 5, 1979.

Rehearing Denied Nov. 27, 1979.

Jimmy Phillips, Jr., Angleton, Tex., for defendants-appellants.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before GEWIN, AINSWORTH and REAVLEY, Circuit Judges.

AINSWORTH, Circuit Judge:

Appellants Felipe Gonzales and Vincente Rodriguez Ovalle were convicted after a jury trial of conspiring to possess with intent to distribute and to distribute a quantity of heroin contrary to 21 U.S.C. §§ 846 and 841(a)(1), and of possessing and distributing heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. ¹ On appeal, appellants assert a number of points of error, but rely principally on the contention that the district judge erred in refusing to compel the Government to disclose the identity and whereabouts of two confidential informants. After a careful review of the record, we find appellants' contentions to be without merit, and accordingly affirm their convictions.

The evidence at trial showed that on August 8, 1978, Special Agent Russell Reina of the Drug Enforcement Administration (DEA) went to the residence of appellant Gonzales located in Edinburg, Texas. Reina was accompanied by two confidential informants, one of whom introduced Reina to Gonzales. Gonzales then left the group in order to place a telephone call to someone who was going to bring over a sample of heroin. While awaiting his arrival, Reina and Gonzales discussed the general availability of heroin. Within a few minutes, appellant Ovalle arrived at the scene. Ovalle gave Reina a free sample of .33 grams of heroin. Reina discussed the quality of the heroin with appellants, and a possible purchase price if Reina found the sample to his liking. At that time Reina, accompanied by one of the informants, went back to Reina's car where a field analysis was performed. The test proved positive for an opium derivative. Returning from his car, Reina expressed his displeasure with the apparent quality of the sample and stated that he would let them know if he wished to make a purchase. During the initial meeting on August 8, the informants were within hearing distance of the conversation between appellants and Reina, and one of the informants joined in general conversation. The main negotiations concerning the quantity, quality, and price of the heroin, however, were conducted by Reina. The primary purpose of the informants' presence was to introduce Reina to the appellants and to reassure them as to Reina's "good" character.

On August 9, Reina again went to Gonzales' home, this time accompanied by only one informant. After exchanging pleasantries, Gonzales reached into a kitchen cabinet and produced two packages of heroin. The first package contained 24.34 grams of heroin warranted to be of the same quality as the free sample given Reina on August 8. The second package was another free sample of .28 grams of heroin of supposedly higher quality. Reina paid Gonzales $2,000 in official government funds for the larger package of heroin. During the course of the meeting, Gonzales indicated that Ovalle had brought the heroin to his home. Throughout the negotiations, the informant was present in the room, but did not enter into the narcotics transaction. The conversation relative to price, quantity, and quality was conducted entirely by Reina. The informant's only active participation in the August 9 meeting was to call Gonzales prior to the meeting and then to relay Gonzales' message to Reina that a quantity of heroin was available for sale.

On August 15, Reina called Gonzales to discuss further purchases. Gonzales suggested that he call again later that evening so that he could talk directly to Gonzales' supplier. Reina returned the call as directed and after talking briefly with Gonzales, Reina talked with the supplier, whom Reina recognized as Ovalle. Ovalle indicated that he had received some heroin which was available for purchase. They decided that a face-to-face meeting was necessary and tentatively scheduled one for the next day. On August 16, Reina, again accompanied by one informant, met with appellants on a roadside near Gonzales' home. Reina expressed his displeasure with the quality of the heroin received earlier. Ovalle then directed Gonzales to show Reina the ounce of heroin he had brought with him. Reina took the ounce back to his car and extracted a 2.3-gram sample, indicating to appellants that he required a small amount to test prior to any additional purchases. There is no indication that the informant played any role in this transaction aside from his mere presence.

The next occurrence took place on August 30, when Reina placed another phone call to Gonzales. Gonzales stated that he had 4 ounces of heroin available for purchase. Once again, Reina expressed dissatisfaction with the quality of the heroin he had received, but indicated a willingness to buy additional heroin if the terms were favorable. On August 31, Reina went to Gonzales' home to pursue the matter. Gonzales informed him that Ovalle could not come over as he had other business to attend. The issue of quality was discussed once more. Gonzales explained that his connection had been improperly diluting the heroin, but that the problem had been solved. Reina explained that he could not purchase any more heroin until he was sure that the quality would be improved. At that point, Gonzales gave Reina two more free samples. One sample of 1.31 grams was supposedly of the new quality, whereas the second sample of 2.24 grams was warranted to be of the same quality as the first sample given to Reina. Before leaving, Reina was told that a large shipment of heroin was going to be delivered in early September if Reina was interested in any purchases. During the exchanges on August 30 and 31, no informants were present.

Gonzales telephoned Reina on October 3, reporting that he had 14 ounces of heroin available. Reina indicated that he was busy at the moment, but that he would get in touch with him soon. Reina called Gonzales the next day, October 4, but Gonzales was not at home. Reina left a message and Gonzales returned the call shortly thereafter. Gonzales stated that everything was ready, and then he put Ovalle on the phone. Reina and Ovalle arranged a meeting in a food store parking lot in McAllen, Texas. Ovalle, driving a car owned by Gonzales, met with Reina as planned. Reina entered Gonzales' car and Ovalle showed him a brown paper bag containing 14 ounces of heroin. Ovalle told Reina that he wanted to exchange the money and heroin at a different location and asked Reina to follow him in his car. Once on the road, Reina gave a prearranged arrest signal, at which time Ovalle was arrested by a number of other officers. No informants were present during this transaction, nor did any participate in the event in any fashion.

Ovalle told arresting officers the address of Gonzales' place of employment. They went immediately to that address and subsequently arrested Gonzales. They did not have an arrest warrant. A search of Gonzales' person at the time of the arrest revealed 21.88 grams of heroin in his left front pocket and .77 grams of heroin in his right front pocket. The arresting officer testified that they feared that Gonzales might flee the jurisdiction if he were to learn of Ovalle's arrest, and thus did not first obtain an arrest warrant before going to Gonzales' work place.

Appellants claim that they were entrapped by the combined actions of the secret informants and Agent Reina. In this regard, appellants assert that it was error for the district judge to deny their motions seeking to ascertain from the Government the identity and whereabouts of the informants. ² Given their alleged entrapment defense, appellants argue that the Government's limited privilege of confidentiality must give way under the logic of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). In Roviaro, the Supreme Court established a balancing test for determining whether the Government should be compelled to disclose an informant's identity. The court held that:

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.

353 U.S. at 62, 77 S.Ct. at 628-29. In striking the balance in favor of disclosure in the specific case presented in Roviaro, the Court found it significant that the secret informant played a prominent role in the criminal activity, and indeed was the sole participant besides the defendant in the specific criminal event involved.

This court has been called upon repeatedly to consider the balance enunciated in Roviaro. An analysis of the case law reveals that two factors are of primary importance in striking that balance. First is the degree of participation exercised by the informant. See, e. g., Alvarez v. United States, 5 Cir., 525 F.2d 980, 982, Cert. denied, 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 (1976); United States v. Clark, 5 Cir., 1973, 482 F.2d 103, 104. When the confidential informant is not "an active participant in the criminal activity, but only a tipster, disclosure of his identity is not required . . . ." United States v. Moreno, 5 Cir., 1979, 588 F.2d 490, 494. Thus, even though an informant is present during a critical transaction, the fact...