U.S. v. Roybal
| Decision Date | 30 December 1977 |
| Docket Number | No. 76-2515,76-2515 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. George ROYBAL, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James R. Dunn (argued), Los Angeles, Cal., for defendant-appellant.
Deanne Smith, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before CHAMBERS and HUFSTEDLER, Circuit Judges, and WONG, * District Judge.
George Roybal was convicted of one count of conspiracy to violate the narcotics laws. He was tried with several other defendants whose convictions have been affirmed by unpublished memorandum opinion of November 29, 1977. Although this appeal was originally consolidated with the others, we have severed it as the facts compel a different result.
Prior to the trial the defendants moved for discovery orders of a very broad nature. The record is not as precise as one might wish, but we interpret the judge's order as granting much of the requests. It is clear from the colloquy at the time of the hearing on the discovery motions, and at the time of trial, that the government should have understood that it was to disclose, in advance of trial, information that it intended to bring out through its informant witnesses.
The government's case against Roybal depended entirely on the informants' testimony. A month prior to trial the government learned that one of the informants had made a purchase of narcotics from Roybal, a purchase for her own personal use and not one that was part of her purchases in the government's controlled-buy program. Despite the discovery order, the government made no attempt to disclose the information to the defense. Instead, it waited until the informant was on the witness stand and then adduced the information without any warning to Roybal. The district judge, using understandably pointed language, was highly critical of the government's manner of proceeding and came very close to granting Roybal's motion for mistrial.
On the facts of Roybal's case, we conclude that there was a violation of the discovery order and that the violation seriously prejudiced Roybal's opportunity to prepare his defense. He was not indicted on any of the substantive counts, only the single conspiracy count. This surprise testimony was used to implicate him in a narcotics sale that was not the subject of the indictment. Without this evidence the jury would only have heard that he had been seen in the company of other codefendants, that he had been using narcotics,...
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