U.S. v. Long, No. 74-2536

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before BROWNING and TRASK; PER CURIAM
• Citation: 533 F.2d 505
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Henry LONG, Defendant-Appellant.
• Docket Number: No. 74-2536
• Decision Date: 05 April 1976

Page 505

533 F.2d 505 UNITED STATES of America, Plaintiff-Appellee,
v.
John Henry LONG, Defendant-Appellant. No. 74-2536. United States Court of Appeals,
Ninth Circuit. April 5, 1976.
Rehearing and Rehearing In Banc Denied May 17, 1976.

Page 506

James F. McAteer (argued), of Lenihan, Ivers, Jensen & McAteer, Seattle, Wash., for defendant-appellant.

Stan Pitkin, U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellee.

Page 507

OPINION

Before BROWNING and TRASK, Circuit Judges, and JAMESON, ^* District Judge.

PER CURIAM:

This is an appeal from a conviction under an indictment charging Defendant-Appellant John Henry Long with two sales of cocaine in violation of 21 U.S.C. § 841(a)(1). We affirm.

1. Appellant's principal contention is that the trial court erred in quashing a subpoena served upon the government's informant.

The government provided appellant with the name of the informant but not his whereabouts. Appellant subpoenaed the informant pursuant to Federal Rules of Criminal Procedure 17(b). The informant was served while in the United States Attorney's office to be interviewed by appellant's counsel. The government sought to quash the subpoena asserting that the informant was (1) ill, (2) in fear for his life, (3) involved in other investigations that might be revealed if he testified at trial, and, in any event, (4) not possessed of information that would assist appellant. The government asked the court to interview the informant in camera pursuant to United States v. Rawlinson, 487 F.2d 5 (9th Cir. 1973), to determine if his testimony would be relevant to the defense. The court asked appellant's counsel why he needed the informant's testimony. Appellant's counsel told the court, in camera, that the informant had induced appellant to enter into a scheme to defraud the buyer (a government agent) by selling him a white powder, furnished by the informant, represented to the buyer to be cocaine but which the informant told appellant was in fact baking soda or sugar. The court decided to conduct an in camera interview of the informant. The court offered to allow both counsel to participate. To avoid revealing the defense, appellant's counsel agreed instead to interview the informant and submit questions which the court would ask the informant in the absence of both counsel. This was done. After the in camera interrogation, the court stated it was convinced that the informant's testimony would not be harmful to the government or helpful to the defense and would be cumulative of other evidence. The court concluded that there was no satisfactory showing that it was necessary to have the informant testify or that appellant would be prejudiced if he did not. Balancing these considerations against the government's interest in protecting the informant, the court concluded that the subpoena should be quashed.

Appellant points out that in both United States v. Rawlinson, supra, and United States v. Alvarez, 472 F.2d 111 (9th Cir. 1973), the question was whether the government should be required to disclose the identity of a confidential informant, and argues that in this case the government revealed the informer's identity and thus waived the privilege. Absent the privilege, appellant argues, the right to compulsory process guaranteed by the Fifth Amendment gives appellant the right to select the witnesses he will present (including government informers, see United States v. Godkins, 527 F.2d 1321, 1326 (5th Cir. 1976); United States v. Davenport, 312 F.2d 303, 305 (7th Cir. 1963)), and the court may not conduct a pre-trial review of the testimony of those witnesses and bar those the court thinks will not be helpful to the defense.

In Roviaro v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 627, 1 L.Ed.2d 639, 644 (1957), the Supreme Court stated that "once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable." The Court of Appeals for the Fifth Circuit recently held that this means that a defendant may not be barred from subpoenaing "any witness already known by him." United States v. Godkins, supra. No doubt this is the general

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rule. Ordinarily, the defendant will be the only person "who would have cause to resent the communication";...