United States v. Ferguson

• Decision Date: 16 April 1974
• Docket Number: 72-1370.,No. 72-1369,72-1369
• Citation: 498 F.2d 1001
• Parties: UNITED STATES of America v. Walter E. FERGUSON, Appellant. UNITED STATES of America v. Walter Edward FERGUSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

498 F.2d 1001 (1974)

UNITED STATES of America v. Walter E. FERGUSON, Appellant.

UNITED STATES of America v. Walter Edward FERGUSON, Appellant.

Nos. 72-1369, 72-1370.

United States Court of Appeals, District of Columbia Circuit.

Argued April 13, 1973.

Decided April 16, 1974.

As Amended April 16, 1974.

Rehearing Denied July 17, 1974.

Certiorari Denied October 21, 1974.

David G. Larimer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

George B. Driesen, Washington, D. C. (appointed by this Court), for appellant.

Before BAZELON, Chief Judge, WILKEY, Circuit Judge, and GASCH,^* United States District Judge of the United States District Court for the District of Columbia.

Rehearing En Banc Denied July 17, 1974.

Certiorari Denied October 21, 1974. See 95 S.Ct. 183.

GASCH, District Judge:

This case involves appellant's conviction for sale of narcotics under 26 U.S.C. §§ 4705(a), 4704(a), and 21 U.S.C. § 174. Appellant raises four questions, two of which are principal issues here: first, whether the trial court erred in not dismissing the indictments on the grounds that the government failed to fulfill its promise to identify and produce at trial the informant who allegedly purchased the narcotics from the appellant, and second, whether the appellant was denied his right to a speedy trial. Of lesser importance are issues of the missing witness instruction and sentencing.

On August 27, 1969, a District of Columbia grand jury handed down an indictment charging appellant with having sold a narcotic drug to "a certain individual" in the District of Columbia "on or about May 20, 1969," in violation of the federal narcotics laws.¹ On September 12, 1969, appellant was arraigned and placed on bond. Appellant's retained counsel encountered disciplinary problems and became unavailable shortly after commencing to prepare this case for trial, and on December 15, 1969, the trial court appointed other counsel to represent appellant. On April 2, 1970, appellant retained new counsel and the trial court thereafter relieved appointed counsel.

On June 9, 1970, a grand jury in the District of Maryland handed down a ten-count indictment charging appellant and another individual, inter alia, with similar violations of the federal narcotics laws alleged to have occurred in Maryland on May 19, 1969. After the issuance of a bench warrant, appellant was finally arrested and later arraigned in the United States District Court for the District of Maryland on November 6, 1970.

On November 19, 1970, appellant's Maryland counsel filed a motion to transfer the proceedings to the District of Columbia. On January 20, 1971, the government requested a hearing on the pending motion, and on May 14, 1971, a status conference was held in Baltimore before Judge James R. Miller, Jr. After obtaining the consent of his codefendant, appellant filed another request to transfer the proceedings to this jurisdiction. The government agreed with appellant's request, and the Maryland federal court transferred the proceeding to the District of Columbia on June 22, 1971.

On July 22, 1971, the court below held a hearing on appellant's motion to disclose the informant's identity and his motion to dismiss for want of a speedy trial. At that time, the government resisted disclosure of the informant's identity, arguing that such disclosure prior to trial would endanger his safety. The court ruled in favor of the government, noting that if the informant's identity were revealed at that time it would certainly decrease his chances for survival. Appellant's motion to dismiss for want of a speedy trial was also denied.

On October 15, 1971, appellant and his codefendant were arraigned on the transferred case and the two cases were consolidated for trial. On October 27, 1971, a bench warrant was issued for appellant. On November 1, 1971, the government announced that it was ready to proceed on the District of Columbia indictment, but stated that it had lost contact with the informant, whose identity was then revealed. The government indicated that he probably would not be available to testify. Appellant then moved to dismiss the indictment. The court below denied the motion to dismiss, and further denied appellant's renewed motion to dismiss for want of a speedy trial. The bench warrant was later executed on November 5, 1971, the appellant was committed and the jury trial commenced on November 10, 1971. Appellant was convicted, and sentenced on March 23, 1972, to five years on count one, two to ten years on count two, and five years on count three on each of the two indictments. Count one of the District of Columbia indictment was to run consecutively to count one of the Maryland indictment. Counts two and three of the respective indictments were to run concurrently with count one of the indictments.

I.

Relying primarily on Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), appellant argues that the trial court committed reversible error in not dismissing the indictments on the ground that the government informant, who was present during the narcotics transaction, was not available for the trial in this case.² In Roviaro, the Supreme Court decided that under certain circumstances, the withholding of an informant's identity and his failure to testify at trial could result in such grave prejudice to the defendant that the government's case must be dismissed. The Court emphasized the fact that such a determination can only be made with respect to the facts of each particular case:

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 62, 77 S.Ct. at 628.

In reviewing the totality of the circumstances in this case, we must begin with those circumstances that caused the conviction of Roviaro to be reversed. Roviaro had engaged in a narcotics transaction with an informant, during which a Chicago police officer lay secreted in the trunk of the informant's car. There were no immediate witnesses to the sale, although two federal agents and a second police officer observed from a distance. Thus, the informant was an integral part of setting up the crime,³ and the Court found that, in the absence of other witnesses, was the only means by which the appellant could explore any possible entrapment by the government.⁴

The facts in the case now before us distinguish it from Roviaro. The most significant distinction is that in Roviaro the government refused throughout to disclose the identity of the informant. Here, the government represented to the Court that the informant would appear as a witness for the government and that his identity was being withheld for reasons of his safety. Here, ten days before the trial, the government did reveal the identity of the informant and disclosed further that the government had lost touch with him. Unlike the situation in Roviaro, the government did not refuse this information throughout the course of the trial. The record further reveals that the government planned to call the informant at trial as a witness. This it had done in prior cases in which this informant had been of assistance. The government suggested, and the District Court ruled, that it was unnecessary and inappropriate to disclose the informant's identity prior to trial because it would undoubtedly jeopardize the informant's life.⁵ Considering the government's need for a continuing flow of information on the narcotics traffic, the obvious perils inherent in the narcotics traffic⁶ and the dangerous role played by an informant, we find that the lower court's determination to postpone disclosure until the time of trial was not unreasonable under the circumstances. The dissent indicates that since the government had produced this informant as a witness in the Tantillo-Jackson conspiracy that it should have offered an explanation as to why it would have been unsafe to disclose his identity prior to the time it expected to call him in this case. It seems clear that if an informant is the target of one group of narcotics violators in one case, he would be more, not less, vulnerable when his identity is revealed in a second case. Certainly he should not be considered out of danger because he had concluded his testimony in the Tantillo-Jackson case. The risk to the informant's safety would be materially increased because the revelation of his identity would give the underworld from which illicit narcotics flow a stronger motive for eliminating him. Apparently the informant has been eliminated.

Since in the instant case the informant's identity was revealed ten days before the trial, the Roviaro case cannot be relied on for the immutable proposition that the absence at trial of an informant who was an active participant in the narcotics transaction necessarily requires the sanction of dismissal.⁷

The dissent points to this Court's decision in United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971). In that case a recording of a conversation between a narcotics agent and the appellant had unaccountably been lost. This Court called upon the government to provide procedures for the safeguarding of such Jencks material and held that in the future unless such procedures were established so that discoverable evidence might be preserved, sanctions for nondisclosure will be invoked. The spirit of Bryant, the dissent says, should be applied to the clearly distinguishable situation with which the Court is confronted in ...