United States v. Conforti, 10558.

Decision Date13 January 1953
Docket NumberNo. 10558.,10558.
Citation200 F.2d 365
PartiesUNITED STATES v. CONFORTI.
CourtU.S. Court of Appeals — Seventh Circuit

Joseph E. Green, Chicago, Ill., for appellant on appeal only.

Otto Kerner, Jr., U. S. Atty., Daniel P. Ward, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before DUFFY, LINDLEY and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

The defendant was charged with possession of counterfeit Federal Reserve Notes, with knowledge that they were counterfeit and with intent to pass them. He waived a jury and the court found him guilty as charged in counts 4 to 12, inclusive, of the indictment. A ten year sentence on each of these counts was imposed, the sentences to run concurrently.

On this appeal the defendant contends, first, that the court erred in permitting testimony regarding his alleged conversations and meetings with Government informers or decoys without requiring or permitting disclosure of their identity; and, second, that there was error in the scope of the cross-examination of defendant's character witnesses which the court permitted.

The evidence upon which the Government relies tended to show the following facts:

On June 28, 1950, at 7:00 p. m., Agent Elmer Moore of the United States Secret Service Office in Chicago, Illinois, was present when a Government informer or decoy, identified only as No. 54, called a Chicago telephone number, EStebrook 8-6593, which, it was established, was the defendant's telephone number. Agent Moore then heard a conversation between No. 54 and a person whom No. 54 called "Stanley," whose voice Moore identified as that of the defendant, Stanley Conforti. No. 54 inquired whether the defendant could get him "one for tonight," and said, "I got 60 for a thousand tonight." After asking No. 54 if he could "use two" Conforti said, "O. K. I will see you at 9:00 at the same place." No. 54 then said, "Taylor and Loomis," and Conforti said, "Yes," and hung up. That evening at 8:20 p. m. Agent Wilmer K. Deckard of the Secret Service observed the defendant leave his home in a 1949 blue Ford sedan bearing 1950 Illinois license tag No. 779-579. On the same date Agent Moore saw No. 54 and another Government informer, identified in the testimony only as No. 55, in the vicinity of Taylor and Loomis Streets in Chicago, at which time the agent searched them and the automobile they were in and found that they had no counterfeit money. Moore then gave No. 54 $90.00 in genuine currency. At about 9:00 p. m. Sidney K. Franken, Special Assistant Agent in Charge of the Secret Service in Chicago, together with Agent Samuel G. Goldman, saw the defendant get out of a blue Ford sedan bearing 1950 Illinois license No. 779-579 on Taylor Street between Loomis and Bishop Streets in Chicago. They then saw the defendant meet No. 54 and go with him into a narrow passageway where he stayed for a few seconds and then came out and drove away. After the meeting between the defendant and No. 54 Agent Moore received a package of counterfeit currency from No. 54. The counterfeit currency was wrapped in a newspaper which was then delivered to Mr. William J. Sheehan, the examiner of questioned documents and fingerprints, and he testified that he found the defendant's fingerprints on the wrapper.

Substantially the same sequence of events as those above related were repeated on six later occasions, the last being on October 12, 1950. On each occasion Agent Moore observed No. 54 call the defendant's telephone number and he heard the ensuing conversation. In each case essentially the same thing took place as that which occurred upon the initial call, except that sometimes No. 54 would inquire, "How about two for tonight?" to which the defendant would assent; and in each instance the defendant would arrange to meet No. 54 at a certain time in the evening at the same place, the vicinity of Taylor and Loomis Streets. On every occasion the defendant was observed leaving his house, in an automobile of a certain description, prior to the agreed time, by an agent of the Secret Service. In each instance the defendant was seen by another agent or agents arriving in an automobile of a corresponding description, at the appointed time and place where he met No. 54. No. 55 was also there on these occasions, "but he always stayed in the background." Prior to each meeting Agent Moore searched No. 54 and No. 55, found no counterfeit currency in the possession of either, and then gave No. 54 some genuine currency. In most instances the defendant was seen to hand to No. 54 a small newspaper-wrapped package. After each meeting Agent Moore would receive from No. 54 and No. 55 a small newspaper-wrapped package containing counterfeit currency. Upon two out of the seven occasions, the defendant's fingerprints were found to be on the wrapper. On one of these two occasions the fingerprint was found on the inside of the wrapper, next to the counterfeit currency.

The defendant denied that he had ever possessed any counterfeit currency; he denied the telephone conversations attributed to him; and he denied ever meeting with anyone in the vicinity of Taylor and Loomis Streets for the purpose of delivering counterfeit money.

On this appeal the defendant contends that it was error for the trial court to admit evidence showing defendant's transactions with No. 54 "without requiring the Government or permitting the defendant to identify" No. 54 and No. 55. The defendant contends that their identity was essential to his defense since, if he had been afforded the opportunity to cross-examine those persons or to call them as witnesses, they might have failed to corroborate the Government's case.

We agree that under the circumstances disclosed by the evidence in this case the defendant had a right to demand a disclosure of the indentity of No. 54. We think it would have been error for the trial court to refuse such a demand. The Government insists, and correctly so, that communications made by informers to the Government are privileged. But the unidentified person, No. 54, involved in this case was more than a mere informer. He was not simply an individual who, knowing that the defendant had committed or was about to commit a crime, communicated that knowledge to the authorities so that the police, acting independently, might then procure evidence of the crime. On the contrary, No. 54 played a part with the defendant in the very transactions upon which the Government relies to prove its case.

This distinction between one who plays a part in a criminal transaction and one who is a mere informer is well illustrated in Sorrentino v. United States, 9 Cir., 163 F.2d 627. There the defendant was charged with an illegal sale of opium to a person whom the Government considered a confidential source. The trial court sustained objections to questions asking his identity on the ground that answers to such questions would violate the privilege as to the identity of informers. The Court of Appeals stated that this was error, saying, 163 F.2d at page 628:

"If the person whom Grady called an informer had been an informer and nothing more, appellant would not have been entitled to have his identity disclosed; but the person whom Grady called an informer was something more. He was the person to whom appellant was said to have sold and dispensed the opium described in the indictment. Information as to this person\'s identity was therefore material to appellant\'s defense, and appellant was entitled to a disclosure thereof."

The Government urges that in the instant case the indictment charges, not a sale of counterfeit currency, but only its possession; that, assuming a sale could not have been proved without revealing the identity of the informers, the evidence is ample to support the charge of possession; and that this is particularly so in view of the evidence that on two occasions the defendant's fingerprints were found on the paper in which the currency was wrapped.

We cannot agree that in this case the fact that the defendant was charged with possession and not sale of counterfeit currency is decisive. The defendant's possession was proved only by evidence of his transactions with No. 54, evidence indicating that he sold and delivered the counterfeit currency to No. 54. We think the applicable principle was announced in Wilson v. United States, 3 Cir., 59 F.2d 390. That case arose out of a criminal prosecution against the Democratic League of Delaware for the unlawful possession of intoxicating liquor. The League had made a motion in that action to suppress evidence which it alleged had been obtained by an illegal search and seizure. During the hearing on the motion one Harold D. Wilson, the deputy prohibition administrator who had seized the evidence sought to be suppressed, testified that he entered the premises of the League upon the invitation of a member, who had furnished him with a key. Wilson was asked the name of this member, and after having been directed by the court to answer, he refused to do so. He was adjudged to be in contempt and was committed.

The Court of Appeals, in considering whether the name of the member alleged to have supplied the key was properly withheld, discussed with approval the well established doctrine that communications made by informers to the Government are privileged. The Court then stated in 59 F.2d at page 392:

"There is, however, an exception to this rule or a modification of this general doctrine, in that it gives way to another doctrine of the law when the two conflict. A trial court must dispose of the cause before it. If what is asked is useful evidence to vindicate the innocence of the accused or lessen the risk of false testimony or is essential to the proper disposition of the case, disclosure will be compelled."

In that case the question whether a member had in fact so furnished the witness with access to the premises was determinative of the...

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