Petition — Long v. United States

Supreme Court brief1976

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IN THE

Supreme Court of the United States

Joun Henry Lone,

Petitioner,

Vv.

Tue Unrrep STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Of Counsel:

LENIHAN, IvERS, JENSEN &

McATEER, P.S.

James F.. McATEER,

Attorney for Petitioner

Office and Post Office Address:

1114 Norton Building

Seattle, Washington 98104

Telephone: (206) 624-4212

CRAFTSMAN © MET Press cM Sarria, WASHINGTON

) a _

~~?

SUBJECT INDEX

Page

I. Citation to Opinion Below ..................00ses:eseeresesees 1

ib SEUTIIIIIDD ° cniticeresicieniinctapteumihinnitaniiaicbbdaiaahiniidiads 2

an ee LS OS AY 2

IV. Constitutional Provisions and Statutes and Rules

IED ssesscaisshataliisactaipiseacaciendthdsaeetacediaplaatbeniijidlanitadiel lace 2

i IO TIIIIED snicsticssnninssstumsnmnsaaiiumatesiditeies 3

VI. Reasons For Granting the Writ ...............0....0.c0c00008 5

Conflict Between the Decision of the Ninth Circuit

Filed April 5, 1976, and the Decision of the Fifth

Circuit In United States v. Godkins, 527 F.2d 1321;

Important Question of Constitutional Law .............. 5

Fe CR wageicietaticrissrnictnisnnnssteniitittinniedlalit pow Bye 13

Appendices:

I 0 hctihissinniaintihinbainsieiliatianieltieiiei latina iaceianial A-1l

ea ee A-4

TABLES OF AUTHORITY

Table of Cases

Johnson v. Zerbst, 304 U.S, 458 (1938) ....cccccccccceseseeees 12

Roviaro v, United States,

EE, CIEE ins csiesoclincansentncenenpanentndl 8, 10-11, 12, 13

United States v. Alvarez,

ee ee Ce BOD ccrcreccnsrntecnnentetipnsitchtnnitnbies ll

United States v. Davenport,

ee eee 8

United States v. Fong,

491 F.2d 1390 (Oth Cir, 1974) ..cccccccccccccssscscceseseseesseen 12

Page

United States v. Godkins, 527 F.2d 1321 ....5, 6-7, 8, 10, 13

United States v, Rawlinson,

og LL | ee 11-12

Washington v. State of Texas,

os SS ft | eee 9, 10

Constitutional Provisions

Oc I a 2, 8, 9, 13

Statutes

Federal Rules of Evidence, P.L. 93-595 (Jan, 2, 1975) .. 3

Federal Rules of Evidence, Rule 501, 88 Stat. 1933 ........ 3

ee NI I catceieistestislsceicetisiiaiitin ia Sa al 3, 5

ENR en rl oN 2

Textbooks

I Bes i Ce entitieeiiiatecicrtininirarsctitrnciies 11

8 Wigmore §§2242, 2327-2329, 2374, 2389-2390 ........... ll

Federal Rules of Criminal Procedure, Rule 16 ................ 3

Rule 17(b) ........ 3

| EE )

EE 3

Federal Rules of Evidence (Supreme Court Version )

ESE Eonar ee rere eee Ne eee 3, 9

FSO SAT Se TE. ll

ARE RS eae. Le me 3, 9, 12

| ESTE Oe Re ORO 13

Supreme Court Rule 22(2) ......cc.cscsccoseresssersscecscsseeeseeees 2

IN THE

Supreme Court of the United States

October Term, 1975

SEE Ra naar

Joun Henry Lone,

Petitioner,

Tue UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Petitioner, John Henry Long, respectfully prays that

a writ of certiorari be issued to review the Opinion and

Judgment of the United States Court of Appeals for the

Ninth Circuit entered in “United States of America, Plain-

tiff-Appellee, v. John Henry Long, Defendant, Appellant,

No, 74-2536" on April 5, 1976.

CITATION TO OPINION BELOW

The Opinion of the United States Court of Appeals for

the Ninth Circuit is printed in Appendix B, p, A-4, and is

reported in .... F.2d .... (1976).

Il.

JURISDICTION

The jurisdiction of this Court is invoked under 28 USC

§1254 and Rule 22(2) of this Court. A Petition for Rehear-

ing was timely filed on April 16, 1976. Rehearing was de-

nied on May 17, 1976.

Hil.

QUESTION PRESENTED

1. Whether a defendant's Sixth Amendment right to have

compulsory process for obtaining witnesses is prejudicially

violated where a trial judge quashed a subpoena served

on a defendant's witness who was a participant in the al-

leged sale of cocaine. The subpoena was served on the

witness prior to trial by the U.S. Marshal, At the suggestion

of the government trial attorney, the trial judge conducted

an in camera hearing and thereafter quashed the defen-

dant's subpoena.

2. Whether the government's voluntary disclosure of

the name of an undercover narcotics agent constituted a

waiver of the “identity of informer” privilege. The agent

was known to defendant merely as “Ric.” In response to

defendant's discovery motion, the United States attorney

disclosed the identity of the agent as “Ric Lyles.” ) #e

Court had ordered the subpoena served at goverum: °

expense.

IV.

CONSTITUTIONAL PROVISIONS AND STATUTES

AND RULES INVOLVED

The Constitutional provision involved is the Sixth

Amendment to the Constitution of the United States. The

statutes involved are the Federal Rules of Evidence, Pub-

lic Law 93-595, January 2, 1975, and Rule 501, 88 Stat.

1933, and the Federal Rules of Evidence (Supreme Court

Version) Rule 510 and Rule 511, all are printed in Ap-

pendix A hereto.

STATEMENT OF CASE

The Petitioner was charged under a two count indict-

ment alleging that Petitioner distributed cocaine, a narcotic

substance, in violation of 21 USC $841. Pursuant to Rule

16 and Rule 46 of the Federal Rules of Criminal Proce-

dure, the Petitioner moved the Court for discovery of the

name, identity and whereabouts of the government in-

former that was present at the time, place, and happening

alleged in the indictment and for a material witness com-

plaint (CR 3)°. The government furnished defense coun-

sel the name of the government agent and “indicated it

would be willing to attempt to serve a subpoena of the

defendant on the person so identified’ (CR 6). Pursuant

to Rule 17(b), Federal Rules of Criminal Procedure, the

Court signed an order authorizing the U.S. Marshal to

serve subpoenas on defense witnesses, including Ric Lyles

(CR 10).

In 1968 or in 1969, when the Petitioner was only 17

years old, he met Ric Lyles at a restaurant on Jefferson

Street, Seattle, Washington, where defendant would some-

times eat his dinner or morning breakfast after working

swing-shift at the Boeing Company (RT 142-143). Four

*Record on Appeal in 2 volumes. Volume 1 is the Clerk’s Record (Plead-

ings) and will be identified herein as (CR). Volume 2 is the Reporter's

Transcript and will be identified herein as (RT).

years later, in about December of 1973, Petitioner again

had contact with Ric Lyles. Lyles propositioned him re-

garding narcotics, but Petitioner rebuked him and told him

it was a “bad scene.” Subsequently, in January of 1974,

Petitioner gave Lyles a ride home and Lyles again propo-

sitioned him with the story that he really had a “fool” on

the line (RT 144). Petitioner again rebuked Lyles and

stated that “he could not be connected in any way with

narcotics (RT 145). Lyles told Petitioner of his plan,

which was to pass off “flour or sugar or baking soda” as

cocaine (RT 145). Lyles asked Petitioner just to play a

part and that he would be given up to $200.00. Petitioner

insisted that it could not involve any narcotics (RT 146).

Petitioner so testified at the time of trial but was unable to

corroborate this claim of entrapment without the testimony

of Lyles.

During the first week of February 1974, DEA Agent

Charles Mathis and Ric Lyles came to Petitioner's apart-

ment on several occasions. At these times, as prearranged,

rehearsed and directed by Lyles. Petitioner played the part

of a seller of cocaine. The first occasion involved nego-

tiations for a sale of a sampie; the second occasion a sam-

ple was delivered (Count } ef Indictment) at which time

Lyles tested it by placing « «mall portion to his nose (RT

148). Two hours later, Mathis and Lyles came back and

a larger quantity of white powder was delivered (Count

II of Indictment). Several days later, Lyles and Mathis

returned to Petitioners apartment and Mathis told Peti-

tioner that the package wasnt the same as the sample

(RT 153). That was Petitioner's first knowledge that there

was cocaine in the package. Prior to that time, Lyles had

assured Petitioner that the white powder was only baking

soda or sugar (RT 154).

The quashing of the subpoena deprived Petitioner of a

fair trial by preventing the Petitioner

(a) from corroborating that the transactions on Febru-

ary 6, 1974, were arranged and engineered by Ric Lyles,

a government agent;

(b) from establishing that the government was the

source of the cocaine sold to the DEA Agent Mathis;

ticipant in a con game, had no knowledge that the white

powder contained a controlled substance; and

(d) from proving that Petitioner's reluctance and un-

willingness to participate in criminal activity was overcome

by the persuasion of Lyles and he was, thus, entrapped.

OVE

REASONS FOR GRANTING THE WRIT

Conflict Between the Decision of the Ninth Circuit Filed

April 5, 1976, and the Decision of the Fifth Circuit

In United States v. Godkins, 527 F.2d 1321;

Important Question of Constitutional Law

Both the Long case and the Godkins case involved

prosecutions for distribution of cocaine under alleged vio-

lations of 21 USC §841. Both cases involved applications

by the defendants for government assistance in serving

subpoenas on witnesses who were known to the defendant

and who were present at the time of the alleged sale, and

who had introduced the defendant to the special agent

who allegedly completed the purchase. In the case of the

Petitioner, the Ninth Circuit approved the quashing of a

defendant's subpoena. In the Godkins case, the Fifth Cir-

cuit Court stated at page 1325:

“° * © we hold that it was error for the district court

to deny appellant his Sixth Amendment right to call

Doe as a witness.

“The court's prohibition against calling John Doe

as a witness at trial, ° ° ° presents a ° ° ° serious

issue of constitutional dimension. The Sixth Amend-

ment guarantees to a criminal defendant certain fun-

damental rights, including the right to call witnesses

on his behalf at trial, and to have the use of compul-

sory process if necessary to achieve this purpose. In

this case, however, the district court found that appel-

lant’s Sixth Amendment rights must be subordinated

to the government's claim of confidential informer's

privilege as enunciated by the Supreme Court in

Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623,

1 L. Ed. 2d 639 (1957).

“In Roviaro the Supreme Court recognized for the

first time the existence of a confidential informer's

privilege, which it defined as ‘in reality the Govern-

ment’s privilege to withhold from disclosure the iden-

tity of persons who furnish information of violations

of law to officers charged with enforcement of that

law. 353 U.S. at 59, 77 S. Ct. at 627. In that case,

Roviaro had unsuccessfully sought prior to trial, to

learn the identity of the government informer ° ° °.

The Supreme Court held that the district court had

erred in upholding the government's assertion of the

privilege, given that the informer was the sole partici-

pant, other than Roviaro, in the transaction charged

and the only witness in a position to amplify or con-

tradict the testimony of government witnesses. ° ° °

° ° oO

“Roviaro thus appears to function as a limitation,

in certain circumstances, on a criminal defendant's

Sixth Amendment right to call a witness whose testi-

mony could have a bearing on his defense. This results

because it places limitations on the power of an ac-

cused to require the government to disclose the name

of an informer. If the confidential informer’s privilege

is applicable, the defendant is prevented from obtain-

ing access to the witness, for one cannot subpoena a

witness whose name one does not know. This is quite

a different matter from denying a defendant the right

to subpoena a witness already known to him and who

was present at the time of the alleged sale and who

had introduced the defendant to the special agent

who allegedly completed the purchase. We have found

Age which authorizes a trial — to restrict the

right of an accused nm to subpoena any witness

already known by i. & give relevant testimony

simply because by questioning such witness he may

be uncovered as an informer.

“The possibility that the witness's testimony might

reveal the identity of a government informer conn

with the case simply is not enough to bring this case

within the scope of Roviare’s indirect limitations of a

criminal defendant's Sixth Amendment right to call

witnesses. See United States v. Davenport, 312 F.2d

303 (7th Cir. 1963), where at page 305 the court said:

“Undoubtedly defendant is correct in his insist-

ence that he was entitled to the right to have com-

pulsory attendance of witnesses and that who they

were to be was a matter for him and his counsel to

decide. . . . That the witness was an informer is ir-

relevant.’

“Moreover, the concerns voiced by the Supreme

Court in Roviaro—there the desirability of shielding

from disclosure to those who would have cause to re-

sent it, the identity of an informer—are not violated

by our holding here. Appellant, the person who would

have the test cause to resent the actions of the

alleged informer, is not seeking disclosure of the in-

former's identity, but is merely exercising his Sixth

Amendment right to call a witness whose identity and

pe in the alleged illegal acts are already

nown to him. Roviaro does not apply in this situation

and consequently we find the district court’s refusal

to allow appellant to call Doe as a witness at trial

constituted reversible error.”

Thus, the Fifth Circuit, in Godkins, and the Seventh Cir-

cuit in United States v. Davenport, 312 F.2d 303 (7th Cir.,

963 ), have taken the firm position that the Sixth Amend-

ment means what it says. That is, that a defendant in a

criminal trial is entitled to subpoena those witnesses that

the defendant believes can give material testimony that is

relevant to the issues presented in the case, and that once

the identity of the informant is known that there is no

privilege. The Court below begged the question by a curi-

ous line of reasoning which held that if the informant was

involved in other unrelated transactions that the privilege

remained, even if his identity had been disclosed to the

defendant. The per curiam opinion of the Ninth Circuit

thereby misapplied and distorted the holding of Roviaro v.

United States, 353 U.S. 53 (1957), in the following man-

ner:

“In Roviaro v. United States, 353 U.S. 53, 60,

(1957), the Supreme Court stated that ‘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.’ ° ° * [But] * ° °

persons other than the particular defendant may have

cause to resent the informant’s conduct, and disclosure

to the defendant alone may not be equivalent to dis-

closure to these other persons. The in camera inter-

rogation of the informant indicated that this was the

situation in the present case. The informant had been

involved in eight or ten transactions involving a dis-

tinct clique of participants in the drug traffic in the

Seattle area. Those in the clique he had exposed were

aware of his role, but members of the much larger

group were not. The informer feared that if he ap-

peared at trial as a government witness his role as

an informer would be established with the later group

as well. On this record the trial court could conclude

that the informer privilege continued to serve its in-

tended purpose despite the transmittal of the inform-

ant’s name to appellant’s counsel. * ° °

“Since the informer’ oe remained, the in

camera procedure adopted by the court to aid it in

paso vg | whether the government interest pro-

tected by the privilege outweighed appellant's right

to i a “ °° *” "United States v. Long,

1976

Whether or not the informant’s privilege remained as

to any other potential defendants in any other unrelated

cases is totally beside the point. The Ninth Circuit, in giv-

ing critical importance to this factor, committed error that

must be corrected. As to the Petitioner, John Henry Long,

the government waived the privilege and disclosed the

identity of the informant. See Rule 510 and 511, Federal

Rules of Evidence (Supreme Court Version), Appendix

A, page A-1. After the disciosure of the name of the infor-

mant, his identity was no longer confidential as to the Peti-

tioner. The trial court’s taking of testimony of Ric Lyles

in camera is a violation of Rule 26 of the Federal Rules of

Criminal Procedure that require the taking of test.mony

of witnesses in open court.

The right to present a defense in a criminal case is a

right that belongs to the defendant himself. In the absence

of an applicable privilege (which was not applicable here

because the informer’s identity had been disclosed) the

prosecution or the court does not have the right to censor

the proposed witnesses of the defense or their expected

testimony by conducting a prior restraint or review of the

defendant’s case. Such would be trial by the court rather

than trial by an impartial jury. The right to compulsory

process is a fundamental right of due process guaranteed

by the Sixth Amendment. In Washington v. State of Texas,

388 U.S. 14, at 19, 87 S. Ct. 1920 at 1923, the court said:

“The to offer the testimony of witnesses, and

to compel their attendance, if necessary, is in plain

terms the right to present a defense, the right to pre-

sent the defendant's version of the facts as well as the

prosecution's to the jury so it may decide where the

truth lies, Just as an accused has the right to confront

the prosecution’s witnesses for the e of chal-

lenging their testimony, he has the right to present

his own witnesses to establish a defense. This right

is a fundamental element of due process of law.”

The failure to give Petitioner compulsory process for

attendance of witness constituted error of constitutional

proportions. United States v, Godkins, supra, 527 F.2d

1321 (1976).

The disclosure of the name of the informant waives the

privilege. In Roviaro, 353 U.S. 53, 59, Justice Burton,

speaking for the Court, said:

“What is usually referred to as the informer’s privi-

lege is in reality the government's privilege to with-

hold from disclosure the identity of persons who

furnish information of violations of law to officers

charged with enforcement of that law.”

The Court further stated:

“e °* * Petitioner's opportunity to cross-examine

Police Officer Bryson and Federal Narcotics Agent

Durham was hardly a substitute for an opportunity to

examine the man who had been nearest to him and

took part in the transaction, Doe had hel to set

up the criminal occurrence and had played a promi-

nent part in it. His testimony might have disclosed

an entrapment. ° ° ° He was the only witness who

might have testified to petitioner's possible lack of

knowledge of the contents of the sailets ie

desirability of calling John Doe as a witness, ° ° * was

a matter for the accused rather than the Government

to decide.

“This is a case where the Government's informer

was the sole participant, other than the accused, in

the transaction charged, The informer was the only

witness in a position to amplify or contradict the tes-

timony of government witnesses, ° ° °” 353 U.S. at 64.

Once the name of Ric Lyles was known to the Petitioner

his identity was no longer confidential, The purpose of the

privilege is to encourage the communication of knowledge

of the commission of crimes to law enforcement officials

and by preserving anonymity foster the flow of information.

The secrecy and confidentiality under the informer’s privi-

lege relates to the identity of the informer. It is evident

that the privilege should terminate when the holder, by

his own act, destroys this confidentiality. See McCormick,

§§ 87, 97, 100; 8 Wigmore, §§ 2242, 2327-2329, 2374, 2389-

2390.

Ric Lyles was used as an undercover informant in more

than one case for the government. Each case in which he

may have acted as an informant-participant is a separate

case. In the language of Roviaro “those who would have

cause to resent his conduct” would necessarily be different

individuals in each of the separate cases in which the in-

formant acted. In the same manner, the identification of

those who would have cause to resent his conduct must be

made on a case by case basis. In the court below, the gov-

ernment voluntarily disclosed the informant’s name and

volunteered to assist in the service of the subpoena (CR-

5-6). By such action, the government relinquished its op-

portunity to employ the “in camera” procedure provided

in Rules of Evidence 510(c) (U. S$, Supreme Court Ver-

sion), which had received the approval of the courts of

the Ninth Circuit in United States v. Alvarez, 472 F.2d

111 (9th Cir., 1973), and United States v. Rawlinson, 487

F.2d 5 (9th Cir., 1973), That action constituted a waiver

of the identity of informer privilege, and was “an inten-

tional relinquishment or abandonment of a known right or

privilege.” Johnson v. Zerbst, 304 U.S, 458, 464 (1938);

Rules of Evidence, Rule 511 (U.S. Supreme Court Ver-

sion). In the Advisory Committee's notes to Rule 511, it

is stated:

“However, in the confidential privilege situations,

once confidentiality is destroyed through voluntary

disclosure, no subsequent claim of privilege can restore

it, and knowledge or lack of knowledge of the existence

of the privilege appears to be irrelevant. California

Evidence Code, §912; 8 Wigmore §2327 (MacNaugh-

ton Rev. 1961).”

The opinion filed by the Ninth Circuit on April 5, 1976,

erroneously decided an important question of Federal con-

stitutional law when it concluded that “the informer’s

privilege remains.”

The Ninth Circuit has held that the government is re-

quired to produce an informant as a potential witness when

there are special circumstances such as the typical defense

of entrapment with a defendant (such as the Petitioner )

who had no prior narcotics record and engaged in but a

single sale of narcotics, and where the informant is the sole

witness who could testify to the alleged entrapment. United

States v. Fong, 491 F.2d 1390 (9th Cir.; 1974), At the trial

court in a legal brief filed in support of the government's

motion regarding the informant, the government conceded

that the privilege of Roviaro was not applicable. It there

stated:

“The government concedes that it is required to dis-

close the identity of the informant under Roviaro v.

iRiy) States, 353 U.S. 53 (1957), and has done so.”

R17

The court below’s reliance on Roviaro under such cir-

cumstances is clearly error because of the waiver.

Vil.

CONCLUSION

The Sixth Amendment right of compulsory process is one

of the fundamentals of criminal trial procedure, The un-

precedented action of the District Court in depriving the

Petitioner of that constitutional right, as approved by the

Ninth Circuit, presents an issue that must be reviewed by

the Supreme Court of the United States, The test of Rule

19 of the Rules of this Court are present, That is, the de-

cision of the Ninth Circuit below is (1) in conflict with the

decision of the Fifth Circuit in United States v. Godkins,

527 F.2d 1321; (2) decides an important question of con-

stitutional law which has not been, but should be decided

by the Supreme Court; and (3) emasculates the decision

of the Supreme Court in Roviaro v. United States, 353 U.S.

53, so that even after the defendant has learned of the

identity of a defense witness, he is deprived of his constitu-

tional rights of compulsory process unless and until after a

Star Chamber in camera procedure, the trial judge ratifies

the defendant's choice of witnesses, The quashing of the

defense subpoena was not in accordance “with the prin-

ciples of the common law” (Rule 501, Federal Rules of

Evidence, Appendix A).

The petition for a writ of certiorari should be granted.

Respectfully submitted,

James F. McATEER,

Attorney for Petitioner

A-l

APPENDIX A

CONSTITUTION OF THE UNITED STATES

AMENDMENT TO THE CONSTITUTION

AMENDMENT VI—JURY TRIAL FOR CRIMES,

AND PROCEDURAL RIGHTS

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an im jury

of the State and district wherein the crime shall have been

committed, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Coun-

sel for his defence.

UNITED STATES CODE ANNOTATED

FEDERAL RULES OF EVIDENCE

RULE 501. General Rule.

Except as otherwise required by the Constitution of the

United States or provided by Act of Congress or in rules

prescribed by the Supreme Court pursuant to statutory

authority, the privilege of a witness, on, government,

State, or political subdivision thereof shall be governed

by the principles of the common law as they may be inter-

preted - the courts of the United States in light of reason

and experience, However, in civil actions and proceedings,

with respect to an element of a claim or defense as to

which State law supplies the rule of decision, the privilege

of a witness, person, government, State, or political sub-

division thereof shall determined in accordance with

State law. Pub. L. 93-595, $1, Jan, 2, 1975, 88 Stat.1933.

A-2

RULES OF EVIDENCE

UNITED STATES SUPREME COURT VERSION

RULE 510. Identity of Informer

(a) Rule of Privilege—The government or a state or

subdivision thereof has a privilege to refuse to disclose the

identity of a person who has furnished information relat-

ing to or assisting in an investigation of a possible viola-

tion of law to a law enforcement officer or member of a

legislative committee or its staff conducting an investiga-

tion.

(b) Who may Claim.—The privilege may be claimed b

an a representative of the government, -

less of whether the information was furnished to an officer

of the government or of a state or subdivision thereof, The

privilege may be claimed by an appropriate representative

of a state or subdivision if the information was furnished

to an officer thereof, except that in criminal cases the

privilege shall not be allowed if the government objects.

(1) Voluntary Disclosure; Informer a Witness.—No

privilege exists under this rule if the identity of the informer

or his interest in the subject matter of his communication

has been disclosed to those who would have cause to resent

the communication by a holder of the privilege or by the

informer's own action, or if the informer appears as a wit-

ness for the government.

(2) Testimony on Merits.—If it appears from the evi-

dence in the case or from other showing by a party that an

informer may be able to give testimony necessary to a fair

determination of the issue of guilt or innocence in a

case or of a material issue on the merits in a civil case to

which the government is a party, and the government in-

vokes the privilege, the judge shall give the government an

opportunity to show in camera facts relevant to determining

whether the informer can, in fact, supply that testimony.

The showing will ordinarily be in the form of affidavits, but

the judge may direct that testimony be taken if he finds

that the matter cannot be resolved satisfactorily upon affi-

A-3

davit. If the judge finds there is a reasonable probability

that the informer can give the testimony, and the govern-

ment elects not to disclose his identity, the judge on motion

of the defendant in a criminal case shall dismiss the charges

to which the testimony would relate, and the judge may do

so on his own motion. In civil cases, he may make any

order that justice requires. Evidence submitted to the judge

shall be sealed and preserved to be made available to the

appellate court in the event of an appeal, and the contents

s not otherwise be revealed without consent of the

overnment,. All counsel and parties shal] be itted to

be present at every stage of proceedings under this sub-

division except a showing in camera, at which no counsel

or party shall be permitted to be present.

(3) Legality of Obtaining Evidence —If information

from an informer is relied upon to establish the legality of

the means by which evidence was obtained and the judge

is not satisfied that the information was received from an

informer reasonably believed to be reliable or credible, he

may require the identity of the informer to be disclosed.

The judge shall, on request of the government, direct that

the disclosure be made in camera. All counsel and parties

concerned with the issue of legality shall be permitted to

be present at every state of proceedings under this sub-

division except a disclosure in camera, at which no counsel

or a & 1 be permitted to be present. If disclosure

of the identity of the informer is made in camera, the record

thereof shall be sealed and preserved to be made available

to the appellate court in the event of an appeal, and the

contents shall not otherwise be revealed without consent of

the government.

RULE 511. Waiver of Privilege by Voluntary Disclosure

A person upon whom these rules confer a privilege

against disclosure of the confidential matter or communica-

tion waives the privilege if he or his predecessor while

holder of the privilege voluntarily discloses or consents to

disclosure of any significant part of the matter or com-

munication. This rule does not apply if the disclosure is

itself a privileged communication. —

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Unrtrep STATES oF AMERICA, 7

Plaintiff-Appellee,

os PARP, | No, 14.2586

Joun Henry Lona, OPINION

Defendant-Appellant. |

[April 5, 1976]

Appeal froze the United States District Court

for the Western District of Washington

Before: BROWNING and TRASK, Cireuit Judges, and

JAMESON,® District Judge.

PER CURIAM:

This is an appeal from a conviction under an indictment charg-

ing Defendant-Appellant John Henry Long with two sales of

cocaine in violation of 21 U.S.C. § 841(a) (1). We affirm.

1. Appellant’s principal contention is that the trial court

erred in quashing a subpoena served upon the government’s in-

formant.

The government provided appellant with the name of the

informant but not his whereabouts. Appellant subpocnaed the

informant pursuant to Federal Rules of Criminal Procedure

17(b). The informant was served while in the United States

Attorney’s office to be interviewed by appellant’s counsel. The

government sought to quash the subpoena asserting that the

informant was (1) ill, (2) in fear for his life, (3) involved in

other investigations that might be revealed if he testified at trial,

and, in any event, (4) not possessed of. information that would

*Honorable William J. Jar .szon, Senior United States District Jude,

District of Montana, sitting by designation.

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2 United States of America vs.

assist appellant. The government asked the court to interview

the infortaant in camera pursuant to United States v. Rawlinson,

487 F.2d 5 (9th Cir. 1973), to determine if his testimony would

be relevant to the defense. The court asked appellant’s counsel

why he needed the informant’s testimony. Appellant’s counsel

told the court, in camera, that the informant had induced appel-

lant to enter into a scheme to defraud the buyer (a government

agent) by selling him a white powder, furnished by the inform-

ant, represented to the buyer to be cocaine but which the

informant told appellant was in fact baking soda or sugar. The

court decided to conduct an in camera interview of the informant.

The court offered to allow both counsel to participate. To avoid

revealing the defense, appellant’s counsel agreed instead to inter-

view the informant and submit questions which the court would

ask the informant in the absence of both counsel. This was done.

After the in camera interrogation, the court stated it was con-

vinced that the informant’s testimony would not be harmful to

the government or helpful to the defense and would be cumula-

tive of other evidence. The court concluded that there was no

satisfactory showing that it was necessary to have the informant

testify or that appellant would be prejudiced if he did not.

Balancing these considerations against the government’s interest

in protecting the informant, the court concluded that the sub-

poena should be quashed.

Appellant points out that in both United States v. Rawlinson,

supra, and United States v. Alvarez, 472 F.2d 111 (9th Cir.

1973), the question was whether the government should be

required to disclose the identity of a confidential informant, and

argues that in this case the government revealed the informer’s

identity and thus waived the privilege. Absent the privilege,

appellant argues, the right to compulsory process guaranteed by

the Fifth Amendment gives appellant the right to select the

witnesses he will present (including government informers, see

United States v. Godkins, ..... F.2d —., —. (ith Cir. 1976);

United Statcs v. Davenport, 312 F.2d 303, 305 (7th Cir. 1963)),

and the court may not conduct a pre-trial review of the testi-

mony of those witnesses and bar those the court thinks will not

be helpful to the defense.

In Roviaro v. United States, 353, U.S. 53, 60 (1957), the

Supreme Court stated that “once the identity of the informer

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2 United States of America vs.

assist appellant. The government asked the court to interview

the informant in camera pursuant to United States v. Rawlinson,