U.S. v. Houghton

• Decision Date: 20 May 1977
• Docket Number: No. 76-1381,76-1381
• Citation: 554 F.2d 1219
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas HOUGHTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1219

554 F.2d 1219

UNITED STATES of America, Plaintiff-Appellee, v. Thomas HOUGHTON, Defendant-Appellant.

No. 76-1381.

United States Court of Appeals First Circuit.

Argued Jan. 6, 1977.

Decided May 20, 1977.

Thomas G. Shapiro, Boston, Mass., by appointment of the Court, with whom Silverglate, Shapiro & Gertner and Harvey A. Silverglate, Boston, Mass., were on brief, for appellant.

Walter B. Prince, Asst. U. S. Atty., Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and BOWNES, ^* District Judge.

BOWNES, District Judge.

This is an appeal from a jury finding and judgment of guilty of distributing one ounce of cocaine in violation of 21 U.S.C. § 811(a)(1) and 18 U.S.C. § 2.

Appellant has raised five issues which we discuss in order of importance.

The first issue is whether the district court's refusal to hold a Rule 11 hearing and accept an informed guilty plea from a former codefendant and eye witness so that he could testify deprived the appellant of his Sixth Amendment constitutional right to present witnesses in his defense. ¹

The facts bearing on this issue are these. The appellant and one John E. Harvey were charged in Count I of a three count indictment with distributing cocaine on June 3, 1975, in Waltham, Massachusetts. Counts II and III of the indictment charged Harvey and Russell Kaplan with distributing and possessing cocaine in Boston on August 19, 1975. On June 14, 1976, the date originally set for trial of all three defendants, Kaplan entered a plea of guilty to Count III with the understanding that the government would dismiss as to Count II. Harvey entered a plea of guilty to Count III of the indictment on the understanding that Counts I and II would be dismissed if the plea were accepted. The district court judge did not then conduct a Rule 11 hearing as to either Kaplan or Harvey, stating instead, "the matter may stand for the time being."

Appellant's counsel had previously informed the court by way of an affidavit of counsel in support of a motion for severance that he had personally interviewed Harvey and that Harvey had stated that he would testify, if it did not prejudice his own trial, that Houghton had neither distributed the cocaine in question nor received anything in connection with the sale.

Because of an ancillary matter not pertinent to this issue, the trial was postponed until June 16. Harvey was called by appellant as a witness. Before he took the stand, there was a bench conference and his attorney informed the court that Harvey would refuse to testify and invoke his Fifth Amendment privilege against self-incrimination as to the events of June 3. Appellant's counsel, Attorney Silverglate, then stated that he wanted to inquire of Harvey as to the events of June 3, "because if allowed to answer questions, I believe that Mr. Harvey would exculpate my client entirely from the charges in this indictment." He then stated: "Your Honor, I would ask if there is a Fifth Amendment problem, if your Honor would simply accept the plea or have the acceptance of plea hearing right now." The court ruled: "You can't ask for that because you do not represent him."

There is no doubt that the right to present witnesses in one's defense is a fundamental constitutional right. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). But some showing has to be made that the witness will testify and as to what he will say. We analogize this situation to a motion for severance, as indeed it was on June 14 when the affidavit was filed. The denial of a motion for severance will be reversed only on a strong showing that the testimony of a codefendant will be actually available and exculpatory.

Motions for a severance so that a defendant may be able to call a codefendant to the stand are usually denied. The courts show a healthy, and quite justified, skepticism whether the defendant would call his codefendant if he could, and whether the codefendant would not claim his constitutional privilege even in a separate trial. Wright, Federal Practice and Procedure, Vol. 1 § 225 at 458.

We observe in the first place that the holding of a Rule 11 hearing and the acceptance of a guilty plea from Harvey by the district court could not constitute a waiver of his Fifth Amendment right against self-incrimination. United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973). Sentence would probably not have been imposed at that time and Harvey, at the very least, had the right to refuse to testify until after he was sentenced.

There was no indication by either Harvey or his counsel that any testimony, exculpatory or otherwise, would be forthcoming if there were a Rule 11 hearing. Moreover, even if Harvey had testified as represented in the affidavit, he would not have necessarily corroborated the most significant aspect of appellant's testimony at trial, i. e., that appellant was not even present when the transaction occurred.

The burden is on the movant and the trial court has no duty to make an independent inquiry. Indeed, there was a danger here that any questioning by the court under these circumstances might have been perceived by Harvey as pressure to coerce him into testifying so as to bail out the appellant.

Appellant's counsel had two days between Harvey's plea and the trial to obtain a firm commitment that Harvey would testify if there were a Rule 11 hearing and the specific facts comprising such testimony. The silence of Harvey and his counsel when the matter came up at trial is good circumstantial evidence that there was no agreement by Harvey to testify on behalf of the appellant.

The district court did not abuse its discretion in refusing to hold a Rule 11 hearing during the trial as to Harvey.

The next two issues arise out of basically the same set of facts:

(a) Whether or not the district court should have dismissed the indictment because of alleged misconduct by government narcotic agents in not diligently making known to defense counsel the whereabouts of a government informant; and

(b) Whether or not the district court impermissibly limited the scope of cross-examination by defense counsel as to the alleged bias of the agents towards appellant.

On May 4, 1976, the district court ordered that the government disclose to defense counsel by May 25, 1976, the following:

(b) whether relevant material or information has been provided the government by an informant;

(c) whether any informant was present when the accused possessed with intent to distribute or distributed a controlled substance as alleged in any count of the indictment, and if any informant or informants were present, the name or names of each informant.

On May 27, 1976, the court amended its order as follows: " . . . the Government shall make a diligent and good faith effort to locate the informants and make them available for interviews with defendants' counsel." Because of the government's objection, the court did not require it to disclose the address of any informant. There was only one informant, Jeffrey Maher, and at least one of the narcotic agents had known his address since the summer of 1975.

The latest order of the court was received by the government on June 1, 1976, and a letter was sent the next day to defense counsel with the name of the informant and a statement that the government was making a good faith attempt to locate and make him available for an interview. A government agent, Boeri, contacted Maher at his home on Friday, June 4, 1976. The government claims, and there is no reason to doubt it, that this information was not communicated to the United States Attorney's office until Tuesday, June 8, two working days later. The whereabouts of Maher was promptly given to defense counsel who conducted a telephone interview with Maher and his mother that day. Maher evinced considerable hostility towards defense counsel during the telephone conversation because he was told that he would have to testify at the trial. On June 14, the court granted a two day continuance so that Maher and his father could be deposed prior to trial.

Appellant filed a motion and affidavit in support thereof to dismiss the indictment based on governmental misconduct. The court denied the motion, but ordered criminal contempt proceedings filed against those governmental agents who appeared to have violated the court's order and appellant's counsel was appointed as special attorney to prosecute the contempt charges.

Appellant claims he was prejudiced because he was denied a personal interview with Maher and because Maher was hostile towards him for compelling him to testify. He also claims that he was prejudiced because Maher was present in court and heard defense counsel's allegations that led to the contempt proceedings against the agents. Additionally, appellant claims prejudice because the agents were bound to be hostile to his counsel due to his role as special prosecutor against them.

We address ourselves to the question of whether there was such deliberate misconduct by the government and prejudice to the defendant as to warrant a dismissal of the indictment.

Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), is the seminal case on the government's duty to identify and locate an informer whose testimony is allegedly vital to the defense.

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...