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United States v. Day

decided: October 10, 1967.

UNITED STATES OF AMERICA
v.
MELVIN P. DAY, APPELLANT



McLaughlin, Hastie and Seitz, Circuit Judges. McLaughlin, Circuit Judge, (concurrence in result).

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge.

The defendant-appellant was convicted by a jury under a four count indictment of selling heroin on two occasions in violation of Title 26 U.S.C. ยงยง 4704(a) and 4705(a).

The principal ground of defendant's appeal is bottomed on the alleged failure of the Government to disclose the identity of an informer. We turn to the Government's evidence on this point.

A federal narcotics agent testified that accompanied by an informer he approached a group at a street corner in Pittsburgh, Pennsylvania and asked one of the persons standing there if there were any narcotics in the area. Shortly thereafter the defendant came out of a bar and joined the informer and the agent. The agent was introduced to the defendant by the informer who said "This is John, a friend of mine." Immediately after the introduction the defendant asked the agent and the informer if they were looking for narcotics. The agent said they were and the defendant stated that "he only had one bag at this time." He stated that he was looking for his supply man to come. The agent purchased one bag of heroin at this time. Shortly thereafter on the same day he bought a second bag of heroin from the defendant. Another agent observed the scenes which have been described and corroborated the testimony of the purchasing agent to the extent he was physically able to do so.

The agent who purchased the heroin testified on direct examination that the first time he met the defendant was when he was introduced to him by the informer at the time the defendant made the first of the sales for which he was later convicted. This testimony was of course made in open court in the presence of the defendant. It was not until after this point in the trial that the defendant's counsel first asked for an identification of the informer and the Government objected. The matter was argued at length and taken under advisement with the trial court stating, inter alia, "Mr. Day [appealing defendant] knows who the informer is. Who are you kidding?"

The existing confusion was compounded by later developments. The Government contends that it thereafter provided defendant's counsel with the identification. Defendant's counsel take issue with this claim. Next the trial court held an in camera session with the informer without notice to the government or the defendant's counsel. The court later refused to order an identification based on a finding that the informer might be the victim of acts of revenge.

Against this strange background, we turn first to the governing language of the United States Supreme Court in the case of Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957):

"* * * once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable."

We are satisfied that tested by any appropriate standard of proof the Government, through the agent's testimony, disclosed the identity of the informer to this defendant. Thus, in our view there is no issue here of Government privilege or defendant prejudice. If we are to recognize the realities, it seems clear that the informer would not have been introducing the undercover agent to the defendant unless the defendant knew the informer. Otherwise, we would have the unnatural situation where a stranger to the defendant would be introducing another stranger to him. This would be a particularly remote possibility in view if the illicit purpose behind the introduction.

We therefore believe that the maneuverings in this case concerning the identity of the informer, whatever their purpose, cannot be supported on the basis of any legitimate need for the identification of the informer. We are satisfied that the defendant was made aware of the informer's identity at least by the direct examination of the narcotics agent. Nor can we find any real issue here as to the sufficiency of the identification. Furthermore, as we read defendant's brief, there is no claim that we are dealing with a refusal by the Government to produce, at defendant's request, a potential witness specifically identified by defendant and somehow subject to the Government's control.

We express no opinion as to the propriety of the in camera procedure adopted by the district court here.

Nor do we here find any merit to the defendant's second claim of prejudice based on the closing statements of the prosecutor to the effect that material aspects of the Government's case remained uncontroverted. Under the existing circumstances, it was not an indirect comment on the appealing defendant's ...


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