United States v. Toombs

Citation497 F.2d 88
Decision Date17 July 1974
Docket NumberNo. 73-1830.,73-1830.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jimmie TOOMBS, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Robert A. Harper, Jr., Gainesville, Fla., for defendant-appellant.

William H. Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Jr., Asst. U. S. Atty., Pensacola, Fla., Melvin R. Horne, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.

Before MOORE*, AINSWORTH and RONEY, Circuit Judges.

AINSWORTH, Circuit Judge:

Appellant Jimmie Toombs and codefendant Lewis Knight ("Slim") were indicted for conspiring to distribute and distributing 1.05 grams of heroin, in violation of 21 U.S.C. §§ 846 and 841(a) (1). Knight entered a plea of guilty and subsequently testified on behalf of the Government. A jury found Toombs guilty as charged and he was sentenced on each count to ten years' imprisonment, the sentences to run consecutively.

On February 20, 1973, prior to the empanelling of a jury, defense counsel filed a motion to compel disclosure of an alleged informant (known as "James"). In a bench conference the court denied the motion, saying :

"The Court has considered the motion and finds that it has not been timely filed and is not otherwise sufficient to require the Court to grant the motion."

Counsel for defendant then indicated, in response to the court's question, that pending the disposition of a previously filed motion for a continuance, the defense was ready for trial. No argument was had or requested on the motion for disclosure. The motion for continuance was denied, the jury empanelled, and the trial was recessed until February 23.1

On appeal, appellant alleges (1) that the record fails to establish a conspiracy and (2) that the trial court erred in denying a motion to compel disclosure of the informer. We find no merit to these contentions and affirm.

Special Agent Ellis Dean of the Bureau of Narcotics and Dangerous Drugs and codefendant Knight testified to the events leading up to the sale of heroin. Appellant Toombs took the stand and testified to his innocence. Also called as defense witnesses were two individuals who were allegedly with Toombs at the time that the heroin changed hands. The substance of the defense testimony was that codefendant Knight was the perpetrator of the crime.

Special Agent Dean testified that on November 4, 1972, he and a confidential informant visited Knight at his residence in Gainesville, Florida, and purchased cocaine from him. Agent Dean then asked Knight if he knew where they could buy some heroin. Knight responded that he would take Dean and the informant to "Jimmie" Toombs for that purpose. Agent Dean, Knight and the informant then proceeded in a Government vehicle to a shoe-shine shop in Gainesville. Upon their arrival Knight exited the vehicle and walked to the rear of the shoe-shine shop. Approximately two minutes later Knight and another individual (later identified as appellant Toombs) walked over to a Cadillac parked approximately 10 yards from the Government vehicle. Toombs entered the right side of the Cadillac, which was subsequently established to belong to him. From where he was seated in the Government vehicle, Agent Dean saw a light go on in the glove compartment of the Cadillac "and then it appeared to him that someone was taking something out of the car." Toombs then returned to the rear of the shop and Knight walked over to the Government vehicle where he told Agent Dean that Toombs "had a $50.00 piece" and if Dean wanted it he should give Knight the money for it. Dean complied and gave Knight $50 in bills, the serial numbers of which had been previously recorded. Dean complied whereupon Knight returned to the rear of the shop. Dean and the informant then existed the Government vehicle and proceeded in the same direction where they were met by Knight returning with a tinfoil packet which he handed to Agent Dean. The packet contained a white powdered substance. Dean and the informant, after discussing the light weight of the packet, entered the shop. Knight introduced Dean to Toombs. Dean asked Toombs if "this was the usual weight of a $50 piece from him because we asked him if whether or not Slim Knight had been in the package," to which Toombs replied, "This is my usual weight on a $50 piece." They talked about seeing Toombs later and possibly purchasing more heroin. After this discussion Dean drove Knight to his residence and Dean and the informant returned to Government headquarters where a test was made of the contents of the packet. The substance was determined to be heroin.

Except for minor variations,2 codefendant Knight's testimony substantially corroborated that of Dean. He further described the incidents leading up to the sale.3

Knight admitted that he was formerly a heroin addict and that James had been his principal supplier.

Defendant Toombs testified that he had never seen Agent Dean prior to the time that Dean entered his house to arrest him. He gave the following account of his activities on the night of November 4, 1972. He was playing a pinball machine at Woody's shoe-shine parlor and engaging in a discussion about a football game when Knight entered the shop for a brief time. About five minutes later Knight returned with the informant, known to him as "James." Knight approached Toombs with a piece of tinfoil paper, handed it to him and asked if it was "a 50-cents piece." Toombs took it and said it looked to him like a 50-cent piece and James said, "I just want to know because I got my money tied up in it." Knight and James then walked back out the door. Toombs said that that was the extent of his conversation and activities with Knight that day. He said that although Knight and James had been to his house about four times trying to get drugs from him he had not then, nor ever had, sold drugs to either Knight or James. On cross-examination, Toombs admitted that the Cadillac parked in the vicinity of the shoe-shine shop on the night of November 4 was owned by him. He denied, however, having gone to the vehicle with Knight or telling Knight that he had 50-cent pieces of heroin worth $50. He said that the tinfoil packet exhibited to him at trial looked like the package Knight gave him to examine. Toombs denied that Knight was addicted to heroin and that he, Toombs, had ever supplied the drug to Knight.

Defendant's two companions at the shoe-shine shop on the night in question corroborated his testimony in regard to the conversation about a 50-cent piece. They also said that the only person who entered the shop with Knight was a short black man, not Agent Dean.

Defendant's wife corroborated his testimony that Knight had been to their home on several occasions to ask her husband about drugs, that the men had argued on those occasions and that her husband had told Knight that he was never to return to the house.

Appellant contends that the Government's testimony shows that the informant was a material witness and an active participant in the alleged transaction and that therefore disclosure of his identity and whereabouts was relevant, helpful to the defense and essential to a fair determination of the cause. Because of the disparities between the testimony of the Government's two principal witnesses, Agent Dean and Knight, as well as the conflict between the testimony of the prosecution and defense witnesses, appellant contends the credibility of the Government's witnesses is weakened.

Public policy forbids disclosure of the identity of an informer except where it is essential to the defense. Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151 (1938). The purpose of the informer's privilege is "the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation." Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957).4 The privilege, however, has its limitations and disclosure is required where it may be "relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." Roviaro, supra, 353 U.S. at 60, 61, 77 S.Ct. at 628. The Supreme Court in Roviaro set certain standards for weighing the need for disclosure against the privilege of withholding such information. "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, 629. See also Rugendorf v. United States, 376 U. S. 528 at 534, 535, 84 S.Ct. 825 at 829, 11 L.Ed.2d 887 (1964).

Applying this test to the facts, it is apparent that nondisclosure of the informer did not inhibit appellant's preparation of his defense. In his motion for disclosure and accompanying affidavit, appellant's allegations that the informant was an active participant and a material witness to the alleged transaction were merely conjectural.5 He made no showing of how disclosure of the informant's identity would be helpful to his defense. See Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964). Entrapment was neither asserted nor argued. To the contrary, appellant's defense was simply that Knight, and not he, was the owner of the packet of heroin referred to in the indictment. The informant was not charged with dealing with defendant. Nowhere in the indictment against defendant is there any reference...

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    ...if his or her identity is disclosed. For examples of cases where informants may have suffered reprisal, see United States v. Toombs, 497 F.2d 88, 90 n. 1 (5th Cir.1974); Swanner v. United States, 406 F.2d 716, 717 (5th Cir.1969); Schuster v. City of New York, 5 N.Y.2d 75, 79, 180 N.Y.S.2d 2......
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    ...States v. Jordan, 2 Cir., 1968, 399 F.2d 610, 615; Walsh v. United States, 1 Cir., 1967, 371 F.2d 436, 437.7 See United States v. Toombs, 5 Cir., 1974, 497 F.2d 88, 93; United States v. Hancock, 5 Cir., 1971, 441 F.2d 1285, 1286--1287; United States v. Bland, 5 Cir., 1970, 432 F.2d 96, 97; ......
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