United States v. Eddings

• Decision Date: 10 May 1973
• Docket Number: No. 72-2162.,72-2162.
• Citation: 478 F.2d 67
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leroy EDDINGS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

478 F.2d 67 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Leroy EDDINGS, Defendant-Appellant.

No. 72-2162.

United States Court of Appeals, Sixth Circuit.

Argued April 12, 1973.

Decided May 10, 1973.

Pierce Winningham, Jr., Jackson, Tenn., (Court appointed), for defendant-appellant.

Callis L. Childs, Asst. U. S. Atty., Memphis, Tenn., for plaintiff-appellee; Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., on brief.

Before PECK, McCREE and KENT, Circuit Judges.

McCREE, Circuit Judge.

Appellant was convicted by a jury of two counts of possession and transportation of non-tax-paid whiskey, in violation of 26 U.S.C. § 5604(a)(1). On appeal, he contends that he was entrapped as a matter of law; that he was denied the opportunity to present an effective defense by the failure of the Government to disclose to him, both before and during trial, the name of an informer who allegedly sold him the whiskey; and that the court erred in its charge to the jury and in its refusal of his proffered special instructions.

The Government's first witness at trial was Robert H. Golson, Special Agent of the Alcohol, Tobacco and Firearms Division of the Treasury Department. He testified on direct examination that early in the afternoon of May 22, 1972, he received information from a confidential informer who had (according to Golson) proved reliable in the past that appellant would pick up 50 gallons of liquor on Law Road near Interstate 40, about twelve to fifteen miles east of Jackson, Tennessee. Golson contacted agents Hopkins and Braxton, and the three agents, along with agent Peach and Peach's brother, set up a surveillance that night in the area described by the informer. Agent Golson, on foot, heard a car coming down a side road in the area and radioed agent Peach, in a truck, to follow it. Peach followed the car for about a mile but was then told by Golson to come back because he had heard a car being loaded in the woods nearby. Golson then saw a car come down a side road and onto Law Road, and then travel with its lights off about 100 yards. Golson was then picked up by agent Braxton and the agents began to follow the second car toward the highway. As they came up behind the car, Golson recognized appellant, whom he had arrested before. The cars of agents Braxton and Hopkins followed appellant onto the highway, and the truck of agent Peach succeeded in getting ahead of appellant, and the caravan then proceeded a few miles until the agents decided to make the arrest. The agents stopped the car in which appellant was riding, and arrested appellant and three others—appellant's codefendant Edward Smith and two women. In response to a question by Golson, appellant stated that the liquor was in the trunk. An examination of the trunk revealed 50 gallons of non-tax-paid whiskey. Golson testified that he did not know who had sold the liquor to appellant.

On cross-examination, Golson testified that he knew nothing of any telephone call to appellant on May 22, and defense counsel then asked him where he had obtained his information about the liquor sale. At this point the Government objected to revealing the name of its informer, and the objection was sustained. Golson thereafter testified that the informer was paid on a contingent basis—the larger the "catch," the larger the fee. The informer did not, Golson stated, indicate to Golson how he had secured his information about appellant's planned purchase of whiskey that night, and did not, to Golson's knowledge, meet with appellant that night. Near the close of cross-examination, defense counsel again asked for the name of the informer, and the court again sustained an objection by the Government.

Following the testimony of agent Golson, agents Peach and Hopkins testified to essentially the same events described by Golson. They knew nothing about the source of Golson's information, and they described their roles in the surveillance and apprehension of appellant. In addition, agent Hopkins read from defendant's police record that Eddings had had two convictions for violating a local liquor ordinance within three years of the trial.

Following the close of the Government's proof, appellant took the stand in his own behalf. He claimed that at 11:00 a.m. on May 22, he received a telephone call from a man he did not know. The caller wanted to meet appellant at a filling station to discuss "selling me this merchandise, which was alcohol." Appellant agreed to meet the man at noon at a filling station in Jackson. The meeting occurred, and the man at the station, whom appellant had never seen before, offered to sell him 50 gallons of whiskey that night. The two agreed to meet at 8:30 that night on Law Road, although appellant testified that he waited until 9:30 to arrive at the meeting-spot in case there was a trap. He came to the agreed-upon place accompanied by Edward Smith and two women, none of whom, according to appellant, knew that appellant was to pick up whiskey. When he arrived at the designated site, he saw two men, one of whom was the man he had met at the filling station that afternoon. He inspected the liquor and then paid the other man $300. He then loaded the liquor into the trunk of the car and drove off. He testified that he had told no one about his plans to obtain the whiskey.

On cross-examination, appellant freely admitted that he never goes on time to buy liquor because he is wary of traps; that he did not like the Law Road meeting place because "a million have been caught on that road"; that agent Hopkins had arrested him "dozens" of times; and that he had planned to sell the whiskey he bought on May 22.

Following appellant's testimony, Edward Smith and the two women who were in the car with appellant on the night of May 22 testified. They indicated that they had no idea that appellant was going to pick up whiskey that night until he began to load the liquor into the car, at which time they began to suspect that they were not merely on a detour to the drive-in movie to which they thought they were headed. They knew nothing about appellant's prior arrangements with the mystery caller.

About two months before trial, appellant moved for an order requiring the Government to furnish him with "the names and addresses of all agents, Federal and State, who participated in the investigation and arrest in this case, including those who contacted this Defendant prior to and at the time of the arrest as a part of the investigation." The court granted the motion, and subsequently denied a motion by the Government to reconsider. Shortly before trial, defense counsel was contacted by telephone by an assistant United States Attorney, who stated that the only names and addresses subject to the discovery order were those of agents Golson, Hopkins, Braxton, and Gary Peach. The Government accordingly did not supply the name of the informer in response to the court order, and did not claim a privilege for the nondisclosure. The record reveals no reference to this noncompliance at trial, except for appellant's in-trial request for the name of the informer.

As stated above, appellant's only defense was entrapment. The jury convicted appellant on both counts of his indictment but acquitted Edward Smith. Appellant was sentenced to 18 months' imprisonment on one count and three years' probation on the second count, the sentences to run consecutively.

Passing, for the moment, appellant's contention that he was entrapped as a matter of law, we consider his claim that the court erred in refusing to order the Government to disclose to him the name of the informer who had alerted agent Golson. Resolution of this claim is governed by the decision of the Supreme Court in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), in which an informer had notified federal and state agents that he intended to purchase narcotics from the defendant and subsequently made the buy while under police surveillance. The informer was the only person present during the actual exchange of narcotics, although a federal agent was concealed in the trunk of the car in which the exchange took place. In holding that the trial court had erred in refusing to require the Government to divulge the name of the informer upon request of the defense, the Court stated:

A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer\'s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. . . .

* * * * * *

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual\'s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer\'s testimony, and other relevant factors.

353 U.S. at 60-62, 77 S.Ct. at 628-629. As the Court has more recently put it, the informer's "identity cannot be concealed from the defendant when it is critical to his case." Branzburg v. Hayes, 408 U.S. 665, 698, 92 S.Ct. 2646, 2664, 33 L.Ed.2d 626 (1972). See also McCray v. Illinois, 386 U.S. 300, 310-311, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

We have twice applied the above test either to reverse a district court's decision not to require the Government to disclose the name of its informer or to require a court to hold an in camera hearing to determine whether the circumstances of the case dictated disclosure. United States v. Barnett, 418 F.2d 309 (...