U.S. v. Grisham

• Decision Date: 13 November 1984
• Docket Number: No. 84-1228,84-1228
• Citation: 748 F.2d 460
• Parties: UNITED STATES of America, Appellant, v. Roger GRISHAM, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 460

748 F.2d 460

UNITED STATES of America, Appellant, v. Roger GRISHAM, Appellee.

No. 84-1228.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 14, 1984.

Decided Nov. 13, 1984.

Joel M. Gershowitz, Asst. U.S. Atty., Washington, D.C., argued, Robert J. Erickson, Washington, D.C., and John R. Osgood, Independence, Mo., for appellant.

John R. Shank, Kansas City, Mo., for appellee.

Before HEANEY, ROSS and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

In early September, 1983, an informant told federal agents that he had declined a suspicious offer by Roger Grisham to sell him packaged hams. This information caused federal agents to begin surveillance at a truck brokerage company owned by Grisham. Shortly thereafter, Grisham was arrested and, on September 6, 1983, indicted by a grand jury and charged under 18 U.S.C. Sec. 659 with possessing 23,000 pounds of purloined ham.

Prior to trial, Grisham moved for disclosure of the identity and whereabouts of the informant. The government opposed the motion, claiming that disclosure is permitted only where it would be relevant or helpful to the defense. Soon thereafter, Grisham's case was referred to a United States Magistrate. On November 30, 1983, the Magistrate ordered that the government make the informant available for interview by defense counsel without the defendant being present. The Magistrate further ordered that defense counsel not disclose the name and address of the informant to the defendant or to any other person at any time without obtaining a further order of the court authorizing such disclosure. The Government objected to the Magistrate's order. On January 5, 1984, the District Court denied the Government's objection and ordered that the Government make the informant available to defense counsel subject to the restrictions of the Magistrate's order of November 30, 1983. The Government refused to make the informant available for interview and the District Court dismissed the indictment. The Government appeals from this dismissal. We reverse.

I.

In the present case, there is apparently no evidence of actual possession of the stolen hams by Grisham. The Government seeks to prove Grisham's constructive possession of the hams on the basis of their presence on or near land owned by Grisham. Grisham contends that since constructive possession of stolen goods is not sufficient for conviction in the event of a reasonable explanation for the possession, a major part of his defense will consist of trying to explain the presence of the hams on or near his property. Grisham further contends that the informant may have knowledge relating to the presence of the hams on or near his property which would be exculpatory. The Government, on the other hand, contends that the informant was not aware of the location of the stolen hams and is not aware of any details regarding their theft. The Government also contends that disclosure is required only if it is reasonably probable that the informant can give relevant testimony material to the defense, denies that the informant has any exculpatory evidence, and points out that Grisham's contention that the informant may have exculpatory information is sheer speculation.

II.

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Supreme Court declared that the Government's privilege to withhold from disclosure the identity of an informant arises because of the need to protect the public interest in effective law enforcement. The informant privilege encourages citizens to communicate their knowledge of the commission of crimes to law enforcement officials by preserving their anonymity. The Court in Roviaro rejected any fixed rule with respect to disclosure, however. The decision whether to require disclosure "is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. at 62, 77 S.Ct. at 628. Thus, "[w]here the disclosure of an informer's identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Id. at 60-61, 77 S.Ct. at 627-628.

The decision to order disclosure "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. "Certainly one of the most relevant factors to be weighed by the court [in determining whether to order disclosure] is whether or not the evidence is material to the accused's defense ...." United States v. Barnes, 486 F.2d 776, 778 (8th Cir.1973) (emphasis in original).

A number of cases have noted the central importance of materiality. In Johnson v. Wyrick, 653 F.2d 1234 (8th Cir.1981), cert. denied, 454 U.S. 1149, 102 S.Ct. 1013, 71 L.Ed.2d 302 (1982), this Court held that the refusal of a trial court to require disclosure of an informant where "[n]either of the alleged informant's tips ... were demonstrated to have led to defendant's arrest or conviction ..." was not an abuse of discretion. Id. at 1239 (quoting State v. Johnson, 539 S.W.2d 493, 509-10 (Mo.Ct.App.1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977)). It follows that a trial court acts well within its discretion in refusing to order disclosure of an informant's identity where the materiality of an informant's potential testimony is not demonstrated. McCray v. Illinois, 386 U.S. 300, 305-14, 87 S.Ct. 1056, 1059-64, 18 L.Ed.2d 62 (1967); United States v. Halbert, 668 F.2d 489, 496 (10th Cir.), cert. denied, 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 453 (1982); United States v. Lewis, 671 F.2d 1025, 1027 (7th Cir.1982); United States v. Skramstad, 649 F.2d 1259, 1265 (8th Cir.1981); United States v. Larson, 612 F.2d 1301, 1304 (8th Cir.), cert. denied, 446 U.S. 936, 100 S.Ct. 2154, 64 L.Ed.2d 789 (1980); United States v. Arrington, 618 F.2d 1119, 1125-26 (5th Cir.1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 876, 66 L.Ed.2d 812 (1981); United States v. House, 604 F.2d 1135, 1140 (8th Cir.1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980); United States v. Barnes, 486 F.2d 776, 778-79 (8th Cir.1973); see also United States v. Pelton, 578 F.2d 701, 707 (8th Cir.), cert. denied, 439 U.S. 964, 99 S.Ct. 451, 58 L.Ed.2d 422 (1978). Conversely, a trial court may abuse its discretion if it orders disclosure of an informant's identity absent a showing of materiality. See United States v. Skeens, 449 F.2d 1066, 1070 (D.C.Cir.1971). A determination by the trial court as to the materiality of the informant's possible testimony is therefore a crucial factor in determining whether to order disclosure of an informant's identity.

III.

In many instances, the materiality of an informant's testimony will be evident from the record, see, e.g., Roviaro, 353 U.S. at 62-65, 77 S.Ct. at 628-630, and the trial court will have the facts necessary to engage in the balancing test mandated by Roviaro. In the instant case, however, the materiality of the informant's knowledge is in dispute. The Government states that the informant in this case was a mere tipster who simply reported his suspicion of illegal activity to the FBI, and that the informant has no further knowledge of the case. Grisham, on the other hand, contends that because of the crime charged and his defense to that crime, the informant may have evidence material to his defense. The Magistrate, without attempting to resolve these conflicting claims, ordered disclosure. The District Court affirmed the order.

After examining the record, we agree with the Government that Grisham's contention that the informant's testimony may be material and exculpatory is sheer speculation. While the Magistrate and the District Court correctly deemed the nature of the crime charged and Grisham's likely defense to be relevant factors to consider, they are not sufficient in this case to overcome the informant privilege. ¹ The burden is on the defendant to show the materiality of the informant's testimony, United States v. Pantohan, 602 F.2d 855, 858 (9th Cir.1979), and it requires more than speculation that the evidence an informant may provide will be material to overcome the government's privilege to withhold the identity of the informant. See United States v. Skeens, 449 F.2d at 1070. Roviaro requires that the trial court balance the Government's privilege to withhold the informant's identity against the defendant's right to discover information. When the degree of materiality of the informant's knowledge is evident, the trial court has significant discretion in determining whether to order disclosure. When allegations as to the materiality of the informant's knowledge are based on mere conjecture, however, a trial court is in no position to determine what to balance against the Government's privilege; at best, this turns the sensitive balancing required by Roviaro into a judicial guessing game. United States v. Lopez, 328 F.Supp. 1077, 1091 (E.D.N.Y.1971). Or at worst, as noted in Miller v. United States...