United States v. Leon, 72-2264

• Citation: 487 F.2d 389
• Decision Date: 20 November 1973
• Docket Number: 72-2027 and 72-2265.,No. 72-2264,72-2264
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Vincent LEON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kimberley HARRISON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Denise BROWN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

487 F.2d 389 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Vincent LEON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Kimberley HARRISON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Denise BROWN, Defendant-Appellant.

Nos. 72-2264, 72-2027 and 72-2265.

United States Court of Appeals, Ninth Circuit.

July 19, 1973.

Rehearing Denied November 20, 1973.

Charles P. Harrod (argued), San Francisco, Cal., for appellant Harrison.

Frank R. Ubhaus, Asst. Federal Public Defender (argued), James F. Hewitt, Federal Public Defender, San Francisco, Cal., for appellant Leon.

Richard A. Hamar (argued), of Hamar, Lurie & Gaines, San Francisco, Cal., for appellant Brown.

Jerry K. Cimmet, Asst. U. S. Atty. (argued), James R. Browning, Jr., U. S. Atty., San Francisco, Cal., for appellee.

Before MERRILL and KOELSCH, Circuit Judges, and GRAY,^* District Judge.

Rehearing Denied November 20, 1973.

WILLIAM P. GRAY, District Judge:

Denise Brown appeals from her conviction of two sales of heroin; at the same trial, appellant Leon was convicted of having aided Brown in such sales, and appellant Harrison was convicted of possession of a large quantity of heroin with intent to distribute it. We reverse the convictions of Brown and Leon and affirm the conviction of Harrison.

BROWN'S APPEAL. Miss Brown's conviction was based largely upon the testimony of Lionel Stewart, a special agent of the U. S. Bureau of Narcotics and Dangerous Drugs. He testified that, in the course of his work in an undercover capacity, he was introduced to Brown by Glen Marchand (Glen), a paid Government informant, and that Brown, without substantial hesitation, responded to his request to buy heroin by driving away briefly, returning with heroin, and delivering it to him at the price upon which they had agreed.

Brown's defense was that of entrapment by the informant, Glen, and she complains of the failure of the Government to use reasonable efforts to insure his availability at the trial.

Denise Brown, a resident of San Francisco, was eighteen years old at the time of the offense. According to her testimony, which was uncontradicted, she had been the girlfriend of (and in love with) Gus Marchand, the brother of Glen Marchand, the informant. Soon after they began "going together," Brown learned that Gus was a heroin dealer, and from time to time she accompanied him when he made deliveries and when he went to his sources of supply. She insisted that, prior to the acts here concerned, she had never dealt in heroin in any manner, and she appears to have no prior criminal record.

Miss Brown previously had become acquainted with Glen through Gus and had understood from the latter that the two brothers had been working together in dealing in heroin. On September 29, 1971, six days before the sales here concerned, Gus left the motel where he and Brown had been staying, after telling her where he could be reached if Glen came by. Shortly thereafter, Glen did arrive at the motel and asked Brown if she could get him some heroin for a friend named Lionel. She refused, but inasmuch as Glen "seemed like he was in such a big hurry," she offered to try to find Gus for him, and she did drive to various places in San Francisco in furtherance of this attempt.

Brown testified that on October 3, at a time when she knew Gus to be out of town, Glen telephoned her twice and in each instance importuned her to sell him some heroin; she refused. The next day he again called her twice for the same purpose; again she refused. On the following day, October 5, Glen telephoned once more, pleading that he desperately needed the heroin for his friend, Lionel, who would cause him trouble if he could not supply it. She responded that he was just wasting his time in making these requests of her, because Gus did not want her to have anything to do with his business. According to Miss Brown, Glen then said, "`Well, if Gus says okay for you to do this for me, will you do it,' and I said no. He said, `Well, you know, he's in trouble and needs money.'" About one-half hour later, Brown received a telephone call from Gus. He said that he was at the courthouse in Los Angeles; that he had just talked to Glen; and that she was going to have to go to his source of supply and get the heroin for Glen, because he (Gus) needed the money to pay a fine in order to avoid jail. She asked him how this squared with his prior insistence that she not have anything to do with his "business," and he responded that it was very important and that she was the only one upon whom he could depend "at this time." She thereupon agreed to follow his instructions. Shortly after this conversation, Glen telephoned again and said that he would be over in about half an hour. He came, accompanied by his "friend," Lionel (who actually was Lionel Stewart, the hereinabove mentioned special agent); and the order, procurement and delivery of heroin were accomplished.

It appears that defendant Brown and her counsel did not learn of Glen's informant status until the second day of the trial. Several weeks previously, Brown's attorney had moved before a magistrate for pre-trial discovery of the identities of all informers. However, the Government successfully objected on the ground that there was no showing that the informant was a participant in the crime (although the prosecution's evidence at the trial showed clearly that the informant, Glen, was a percipient witness to the subject sale of heroin). Once counsel for Brown learned that Glen had been a paid informer, he announced that his client's defense would be entrapment and requested that Glen be produced. The trial judge instructed the prosecutor to attempt to obtain Glen's presence in court the following morning. The next day, the Government reported on its unsuccessful efforts to locate Glen. Narcotics agents testified that Glen was currently working for the Government as an informer in the area covered by the Los Angeles Regional Office of the Bureau of Narcotics and Dangerous Drugs, and that Glen had telephoned such office the preceding afternoon in connection with another case. However, the local officials did not have his address or telephone number, and they knew of no way to get in immediate touch with him although they expected to hear from him during the next day or so. Upon this showing, the court again ordered the Government to "get busy and get that informer up here today or tomorrow." However, Glen never did appear at the trial, and the court implicitly denied Brown's motion that her prosecution be dismissed because of the Government's failure to produce Glen, presumably because the defendant waited until after the trial began before demanding such production.

Of course, if Glen had not been in the employ of the Government, neither his alleged importuning nor his inferred enlisting of the aid of Gus would have suggested any basis for an entrapment defense. It was presumably due to the prosecution's refusal to reveal Glen's relationship to the Government that Brown's attorney was late in asserting such a defense and in asking that Glen be made available.

It is emphasized again that the above recitals with respect to Glen's alleged participation in bringing about the subject sales of heroin stem altogether from Miss Brown's testimony, which the jury presumably did not believe. Whether Glen would have confirmed or denied her story, we do not know. It is worthy of note, however, that one of the narcotics agents testified to the effect that, shortly before the day of the subject sale, Glen told him that if the Government wanted to make a case against Denise Brown, he could do it.

In any event, defense counsel made what, under the circumstances, was a timely request that Glen be produced, and the Government had the obligation to accomplish this or show that, despite reasonable efforts, it was not able so to do. Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir. 1965). We recognize and reaffirm that "whether there was a failure to expend every reasonable effort to obtain the witness is a question of fact for the trial judge." Velarde-Villarreal v. United States, supra, at p. 13. We also assume from the record that the trial judge concluded that, beginning as of the time of the defendant's request, after the trial had begun, the Government did all that it reasonably could to locate Glen and get him into court. However, the testimony of the narcotics agents showed that Glen had been working for the Government from a time prior to the events here concerned and until at least the conclusion of the trial. Several months before the trial, an agent told Glen that he might be needed to testify, but no arrangements were made to insure his presence. In another later conversation, Glen, upon being advised by a narcotics agent as to the date of the trial, said that he did not want to testify against his brother's girlfriend and declined to give his address and telephone number. Apparently, no attempt was made to persuade or direct him otherwise or to condition his continued employment upon his availability as a witness when needed.

We believe that the following observation from the opinion in Velarde-Villarreal v. United States, ...