United States v. Rawlinson, No. 73-1660.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: CHAMBERS, HASTIE and CHOY, Circuit
• Citation: 487 F.2d 5
• Docket Number: No. 73-1660.
• Decision Date: 18 March 1974
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest G. RAWLINSON, Defendant-Appellant.

487 F.2d 5 (1973)

UNITED STATES of America, Plaintiff-Appellee,
v.
Ernest G. RAWLINSON, Defendant-Appellant.

No. 73-1660.

United States Court of Appeals, Ninth Circuit.

November 1, 1973.

Certiorari Denied March 18, 1974.

487 F.2d 6

Charles M. Sevilla (argued), of Federal Defenders, Inc., San Diego, Cal., for defendant-appellant.

Douglas G. Hendricks, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before CHAMBERS, HASTIE^* and CHOY, Circuit Judges.

Certiorari Denied March 18, 1974. See 94 S.Ct. 1579.

CHOY, Circuit Judge:

Ernest G. Rawlinson was convicted after a jury trial of one count of possession of heroin in violation of 21 U.S.C. § 841(a)(1) (1970). Prior to the trial, he filed a motion to reveal the identity of a confidential government informant. The motion was denied after the trial judge held an in camera interview with the informant from which he determined that the informant's testimony would not be helpful to the defense. Rawlinson was sentenced to three years imprisonment with three years special parole. We affirm.

There were substantial conflicts at trial between the testimony of Rawlinson and Officer Stephen Smith, an undercover agent assigned to the Federal Drug Abuse Law Enforcement Agency who was present on the day the alleged offense occurred. Rawlinson testified that the informant was persistent in his requests that Rawlinson obtain heroin for him. The appellant contends that it was only this persistence combined with what he testified was the informant's obvious addiction to drugs that overcame his reluctance to obtain the heroin. Smith, on the other hand, testified that the informant's conversations with appellant were brief, were not in any sense urgent pleas for heroin, and that the informant did not exhibit any signs of addiction on the day in question. Rawlinson argues that his version of the facts constitutes entrapment to which the informant's testimony, if favorable, would be highly relevant. Thus, he contends,

487 F.2d 7

it was error not to reveal the identity of the informant, after which the defendant, and not the trial judge by use of an in camera hearing, could best determine the usefulness of the testimony

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Supreme Court held that an informant's identity must be revealed whenever it would be "relevant and helpful" to an accused's defense or "essential to a fair determination of a cause." 353 U. S. at 60-61, 77 S.Ct. at 628. However, the Court noted that protecting an informant's confidentiality serves important law enforcement objectives¹ and, therefore, determining whether to reveal an informant's identity requires balancing the needs of law enforcement against the individual's interest in having a fair trial.

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. . . .

Roviaro v. United States, 353 U.S. at 62, 77 S.Ct. at 628; see United States v. Alvarez, 472 F.2d 111, 113 (9th Cir. 1973).

We believe that in most situations an in camera hearing provides a salutary means by which to satisfy the balancing of interests required by Roviaro. The interests of law enforcement are served by protecting the identity of the informant except where a need is demonstrated for disclosure by the informant's own testimony, and not by the speculative claims of the defendant.² A fair trial is promoted by requiring disclosure whenever the in camera hearing demonstrates that the informant's identity would be "relevant and helpful" to the defense.³

The appellant argues, on the basis of Alderman v. United Sates, 394 U. S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), and Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), that only the accused, because of his familiarity with the case, can make a determination as to the usefulness of the informant's testimony. In Alderman the...