U.S. v. Pennick

• Decision Date: 30 July 1974
• Docket Number: No. 73-1823,73-1823
• Citation: 500 F.2d 184
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis PENNICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 184

500 F.2d 184

UNITED STATES of America, Plaintiff-Appellee, v. Dennis PENNICK, Defendant-Appellant.

No. 73-1823.

United States Court of Appeals, Tenth Circuit.

Argued May 13, 1974.

Decided July 30, 1974.

Stephen K. Lester, Asst. U.S. Atty. (Robert J. Roch, U.S. Atty., and Benjamin L. Burgess, Jr., and Monti L. Belot, Asst. U.S. Attys., on the brief), for plaintiff-appellee.

Lawrence E. Curfman, Wichita, Kan., (Dennis L. Gillen and Weigand, Curfman, Brainerd, Harris & Kaufman, Wichita, Kan., on the brief), for defendant-appellant.

Before LEWIS, Chief Judge, and McWILLIAMS and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

In a two count indictment Dennis Pennick was charged with distributing heroin in Junction City, Kansas, on September 12 and 29, 1972. Count I pertained to the first named date, and Count II to the latter date. The indictment was not returned till March 21, 1973, and Pennick was thereafter arrested on March 25, 1973.

Prior to trial, Pennick's counsel sought to compel the Government to identify the persons it intended to call as witnesses. In this regard Pennick's counsel particularly requested that the Government identify and informer who was to be called as a Government witness. This request the trial court denied. In this general connection it should be noted that by order of the court the Government did specify the approximate time of day when each of the offenses charged was supposed to have been committed, and it also identified the place where the transactions occurred, which was Pennick's residence.

Upon trial to a jury Pennick was convicted on both counts, and he now appeals. Two grounds are urged for reversal: (1) Refusal of the trial court to compel the Government to identify its witnesses prior to trial, including any witness who might be an informer, and (2) error by the trial court in admitting evidence of other transactions by Pennick which tended to show the commission of crimes other than those charged in the indictment, and in permitting counsel to comment on such evidence in his opening statement. In our view, neither of these matters requires a reversal, and we therefore affirm.

As indicated, Pennick was not charged with a sale, as such, of heroin, but in each count, based on a separate and distinct transaction, he was charged with knowingly and intentionally distributing heroin in violation of 21 U.S.C. 841(a)(1). The one to whom the heroin was allegedly 'distributed' was not identified in the indictment, not even by a 'John Doe' designation.

The Government's evidence showed that a Government drug agent, and his informer, went to Pennick's home in Junction City, Kansas, on two separate occasions in September 1972. On each occasion the informer was searched and, after being given money by the agent, the informer proceeded to gain admission to Pennick's house, the informer and Pennick being friends. The informer was called as a Government witness and his testimony was that on each occasion he bought heroin from Pennick which he later turned over to the Government agent.

As above mentioned, Pennick first contends that the judgment should be reversed because of the refusal of the trial court to compel the Government to identify its witnesses by way of pre-trial discovery, particularly as concerns any witness who was also an informer. In thus arguing counsel relies primarily on Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). We believe Roviaro to be distinguishable on the facts, and under the circumstances here disclosed we find no error in the refusal of the trial court to compel the Government to disclose in pre-trial discovery its witnesses, including the identity of an informer who ultimately did testify upon trial.

Section 3432, 18 U.S.C., provides that a person charged with treason or other capital offense shall be furnished at least three days prior to trial with a list of the witnesses to be produced at the trial for proving the indictment. The statute has been construed as meaning that in a noncapital case a defendant is not entitled as a matter of right to a list of the Government's witnesses in advance of trial. United States v. Eagleston, 417 F.2d 11 (10th Cir. 1969); United States v. Gleeson, 411 F.2d 1091 (10th Cir. 1969), and Edmondson v. United States, 402 F.2d 809 (10th Cir. 1968). In the instant case the informer was a Government witness and did appear and testify upon trial, submitting himself to examination and cross-examination, a fact which we deem to be significant. In other words, we are not here concerned with an informer who does not appear on trial as a Government witness, and who conceivably could be helpful to the defendant in his defense. So, the informer in the instant case being himself a Government witness, under the general rule cited above Pennick was not entitled to learn the identity of the informer, or any other Government witness, prior to trial.

Counsel argues that while Pennick may have no right to such disclosure prior to trial, the trial court in the exercise of its discretion could nonetheless order, and under the circumstances should have ordered, such disclosure, particularly when we are dealing with an informant. We do not agree with such reasoning and in our view the fact that one of the Government's witnesses was an informer weakens, rather than strengthens, Pennick's argument that he was entitled in advance of trial to a list of the Government's witnesses. As the trial court noted, informers whose identity is revealed prior to trial are often among the missing when the trial date rolls around. Let us now look at the Roviaro case.

In Roviaro the Government successfully resisted the repeated offorts of the defendant to learn the identity of the informer both before and during trial. In other words, in Roviaro the informer did not appear as a Government witness, as did the informer in the instant case. In Roviaro the Supreme Court held that under the circumstances there disclosed the trial court committed prejudicial error 'in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure.' In so holding the Supreme Court nonetheless recognized a limited privilege inuring primarily to the Government, and only secondarily to the informer, to withhold the identity of a true informer in 'the furtherance and protection of the public interest in effective law enforcement.'

The Supreme Court in Roviaro stated that no fixed rule with respect to disclosure or nondisclosure could be laid down, and that the problem called for a 'balancing of the public interest in protecting the flow of information against the individual's right to prepare his defense.' In the instant case the trial court applied the 'balancing test' referred to in Roviaro and took into consideration the various factors...