U.S. v. Perez-Gomez

• Decision Date: 12 January 1981
• Docket Number: PEREZ-GOME,D,No. 79-1572,79-1572
• Citation: 638 F.2d 215
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rafaelefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 215

638 F.2d 215

UNITED STATES of America, Plaintiff-Appellee, v. Rafael PEREZ-GOMEZ, Defendant-Appellant.

No. 79-1572.

United States Court of Appeals Tenth Circuit.

Jan. 12, 1981.

Leonard D. Munker, Federal Public Defender, Dist. of Kansas, Wichita, Kan., for defendant-appellant.

Stephen K. Lester, Asst. U. S. Atty., Wichita, Kan. (James P. Buchele, U. S. Atty., Wichita, Kan., with him on the brief), for plaintiff-appellee.

Before BARRETT, DOYLE and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Rafael Perez-Gomez appeals a jury verdict finding him guilty of ten counts of knowingly transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(2). The issues raised on appeal are whether (1) the prosecution improperly failed to advise defense counsel of the existence of an informer, (2) the court erred in denying discovery of the identity of the informer, and (3) sufficient evidence was presented to establish that Perez-Gomez acted with knowledge of the status of the aliens.

On January 22, 1979, Immigration and Naturalization Service (INS) agents in Kansas were advised by an INS agent in California that a blue van transporting illegal aliens from Los Angeles to Chicago would stop overnight at a motel in Hays, Kansas. After being informed by local police of the arrival of the van, INS agents proceeded to an A & W Root Beer stand adjacent to the motel and observed the parked vehicle. Subsequently, Perez-Gomez emerged from one of the motel rooms, walked to the root beer stand and ordered thirty-two hamburgers and sixteen orders of french fries to go. Perez-Gomez then took the food to two motel rooms and after a short while escorted nineteen people to the van in groups of two. An INS agent testified that the persons he observed appeared to be of Mexican descent and nervous. Perez-Gomez locked the occupants in the van and drove a short distance before being arrested by INS agents and local police. Ten men, six women, and three children were found in the back of the van, all Mexican nationals, and none able to speak English.

The principal argument for reversal is based upon the government's answer to the question on the omnibus hearing report, adopted for use in the District of Kansas by local rule, as to whether an informer was involved. The omnibus hearing report, apparently prepared by the magistrate but approved by the attorneys, indicated that there was no informer. From reading the affidavit of probable cause, defense counsel formed an opinion that an informer was involved. He then filed a motion to compel the government to disclose the existence and identity of the informer. The government replied that it would subpoena all material witnesses but did not want to reveal even the existence of an informer because such a revelation might endanger the informer or someone thought to be an informer. The court ruled that the government should indicate to the court whether an informer was used and that, if one was involved, an in camera hearing would be held to determine whether the informer's identity should be disclosed. Pursuant to this order, the informer's existence was revealed, and the court determined after an in camera proceeding that the identity need not be disclosed to defense counsel.

The government complains that the informer question on the omnibus hearing report places the government in a "no-win" situation and endangers informers and those whom defendant believes to be informers. "In order to combat this, the Government has followed the practice at Omnibus Hearings of informing the magistrate that it will subpoena all known material witnesses. Although the magistrate doesn't record this answer, the Public Defender is well aware of the practice." Appellee's brief pp. 6-7.

If the government attorneys gave false answers to questions on the omnibus hearing report, we unequivocably condemn that action. As an officer of the court an attorney may not knowingly make a false statement to the court or fail to disclose what he is required by law to reveal. Code of Prof. Resp. DR 7-102(A)(3) and (5). See also id. DR 7-106(C)(7). Of course, an attorney may openly refuse to answer the question if he seeks, in good faith, to test the validity of the disclosure rule. Id. DR 7-106(A). The court, of course, has ample power to redress ethical breaches committed by lawyers practicing before it.

Since the existence of an informer was revealed before trial, and the government as appellee does not directly challenge the legality of the local rule, we do not have before us, and do not consider, the validity of the disclosure requirement under the local rule. The question properly before us is whether error has been committed requiring reversal of this conviction. To constitute reversible error a prosecutor's nondisclosure or false statements must be of "sufficient significance to result in the denial of the defendant's right to a fair trial." United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). Specifically, the government's failure to comply with its obligations under omnibus proceedings does not constitute reversible error absent a showing of prejudice. United States v. Phillips, 585...