Petition — Robles v. United States

Supreme Court brief1977

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IN THE

SUPREME COURT OF THE UNITE TES

OCTOBER TERM, 1976

No. 76-408

RUBEN MORALES ROBLES

and ROBERT DALE HART,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL J. BROWN, P. C.

222 North Court Avenue

Tucson, Arizona 85701

and

LOUIS L. DECKTER

111 South Church Avenue

Tucson, Arizona $5701

Co-counsel for Petitioners

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No.

RUBEN MORALES ROBLES

and ROBERT DALE HART,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL J. BROWN, P. C.

222 North Court Avenue

Tucson, Arizona 85701

and

LOUIS L. DECKTER

lll South Church Avenue

Tucson, Arizona 85701

Co-counsel for Petitioners

INDEX

Opinion Below ......e«««-

Jurisdiction ies ee oe a

Questions Presented ......

Constitutional and Statutory

Provisions. .

Statement of Facts ‘es & 4 a

Reasons to Grant Writ

I. Issues to be settled by

this Court . «+e...

II. Conflict in Circuits .

III. Application of "Clearly

Erroneous" Rule © 8 e

Conclusion + *+*2*¢e &€ & @ & @

APPENDIX:

A. Opinion of the United States

Court of Appeals for the

Minth Circuit ..+«+¢«-e«e¢e

B. Petition for Rehearing and

Suggestion of Rehearing En

Banc (by Appellee) a oy oe

Page

xxix

C. Order granting rehearing . . xxxiii

D. Panel Opinion ....... XXXV

E. Petition for Rehearing and

Suggestion for Rehearing En

Banc (by Appellant Robles) . lxxvi

F. Petition for Rehearing (by

Appellant Hart) ...... Lxxxi

G. Order denying rehearing .. xcvii

TABLE OF AUTHORITIES

Cases:

Blair v. United States, 250 U.S.

eae a ee ee ec ee

Fieishmann Distilling Corp. v.

Maier Brewing Co., 314 F.2d

1435 (Sth Cir. 1963) . ... 27, 29

Hurtado v. United States, 410 U.S.

eee caprg ne | |

People v. Goliday, 106 Cal. 113,

505 P.2d 537 (S.Ct., en banc,

1973) ‘ee@eeeeeeesesc sa

Stevenot v. Norberg, 210 F.2d 615

(9th Cir. 1954) ‘' + 6 #04 « Be

United States v. Jones, 492 F.2d

239 (3rd Cir. 1974) .. 20,.21, 22

Page

United States v. Mendez-Rodriguez,

450 F.2d I (9th Cir. 1971) . .

United States v. Tatum, 496 F.2d

1282 (Sth Cir. 1974) .....

United States v. Tsutagawa, 500

F.2d 420 (9th Cir. 1974) ...

United States v. Williams, 496 F.2d

Bve (hee Cake SPIE) 0 2 0 0 oo

Velarde-Villareal v. United States,

354 F.2d 9 (9th Cir.

eeewe cee ene sce ASe BM,

Washington v. State of Texas,

388 U.S. 14 (1967) ......

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No.

RUBEN MORALES ROBLES

and ROBERT DALE HART,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL J. BROWN, P. C.

222 North Court Avenue

Tucson, Arizona 85701

and

LOUIS L. DECKTER

111 South Church Avenue

Tucson, Arizona 85701

Co-counsel for Petitioners

The petitioners, RUBEN MORALES

ROBLES and ROBERT DALE HART, respect-

fully pray that a writ of certiorari

issue to review the judgment and opinion

of the United States Court of Appeals

for the Ninth Circuit in this case,

entered on July 22, 1976.

OPINION BELOW

The judgment of the Court of

Appeals for the Ninth Circuit, en

banc, was entered on July 22, 1976.

A.timely Petition for Rehearing was

denied on August 19, 1976.

JURISDICTION

The opinion of the United States

Court of Appeals for the Ninth Circuit

is not yet reported but is attached

hereto, infra, at page i.

The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED FOR REVIEW

A. What efforts does the govern-

ment have to make, to produce for trial,

a non-resident alien whom they have

employed as an informer?

B. If the government must use

every reasonable effort to obtain the

presence at trial of this non-resident

alien employee, who was a participant

witness, did they use such efforts in

this case?

C. On the question of the use of

"reasonable efforts" does the "clearly

erroneous" rule apply?

D. Even if the clearly erroneous

rule applies, wasn't the trial court's

finding that reasonable efforts were

made clearly erroneous?

CONSTITUTIONAL AND STATUTORY PROVISIONS

1. Amendment V to the United States Con-

stitution

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of

a Grand Jury, except in cases arising in

the land or naval forces, or in the Mili-

tia, when in actual service in time of

War or public danger; nor shall any per-

son be subject for the same offence to be

twice put in jeopardy of life or limb;

nor shall be compelled in any criminal

case to be a witness against himself, nor

be deprived of life, liberty, or property,

without due process of law; nor shall pri-

vate property be taken for public use

without just compensation.

2. Amendment VI to the United States Con-

stitution

In all criminal prosecutions, the

accused shall enjoy the right to a speedy

and public trial, by an impartial jury of

the State and‘district wherein the crime

shall have been committed, which district

shall have been previously ascertained 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 Counsel for his defense.

STATEMENT OF FACTS

On April 3, 1974 the petitioners

were arrested by agents of the United

States Government (D.E.A.) for distri-

bution of cocaine. On May 9, 1974

petitioners were charged by indictment

with distribution of cocaine in vio-

lation of U.S.C., Section 841(a) (1).

Prior to trial, a motion for the

identification and production of informers

was granted by the trial court. The

government failed to produce the inform-

er, Murrieta, who, it is acknowledged,

had all of the information concerning the

alleged crime. When it became apparent

that the government would not produce

this witness, both the petitioners

moved, in the alternative, either for

a continuance or for a dismissal of the

charges; the motions were denied and

petitioners went to trial without the

benefit of the witness, Murrieta.

On August 14, 1974, the petitioners

were found guilty by jury verdict. On

September 18, 1974, judgment was entered

on the verdict and petitioners were sen-

tenced to imprisonment for five (5) years,

a three thousand dollar ($3,000.00) fine,

and special probation of five (5) years.

On September 20, 1974, Robles was re-

leased on bond pending appeal and is

Still released on said bond. The de-

fendant Hart is presently released on

his own recognizance by virtue of the

order of the Ninth Circuit Court of.

Appeals, pending the outcome of his

appeal.

The informer, Murrieta, is and was

a resident of Magdalena, Sonora, Mexico,

a town sixty-five miles south of the

international border between Mexico and

the United States. He lived there when

he was hired by the D.E.A. and continued

to live there, according to all avail-

able information, up to and including

the time of petitioners' trials. During

the year and a half immediately preced-

ing the petitioners’ trials, the inform-

er, Murrieta, had been utilized by the

D.E.A. sixteen (16) times, ten of those

cases were commenced solely within Tucson,

Pima County, Arizona, and had nothing to

do with his status as a non-resident

alien. (It is acknowledged that it might

be worthwhile for the D.E.A. to hire non-

resident aliens as informers for the

purposes of developing or making cases

that involve smuggling narcotics or

contraband across the international

border; however, it is not acknowledged

that such "special employees" should be

used to make cases solely within the

United States having nothing to do with

their non-resident alien status, and

then sent back to Mexico beyond the

reach of the process of the courts of

the United States.)

The agents did not know Murrieta's

address or telephone number and had no

way to get in touch with him; any con-

tact between the government and its

special employee has to be initiated

by Murrieta. The government deliber-

ately avoided obtaining any information

that any reasonably prudent police

officer would have obtained; infor-

mation that would have assisted in

locating the government informer who was

a participant in the crime. The only

efforts made by the government to obtain

the informer, Murrieta, for trial was to

tell him over the telephone that he had

to pe in Tucson for the trial.

REASONS TO GRANT WRIT

This court should grant the writ in

the instant case because:

THE NINTH CIRCUIT HAS RULED ON

AN IMPORTANT FEDERAL QUESTION

CONCERNING THE RIGHTS OF AN

ACCUSED UNDER THE FIFTH AND

SIXTH AMENDMENTS TO THE CON-

STITUTION OF THE UNITED STATES;

THESE QUESTIONS HAVE NOT BEEN,

BUT SHOULD BE, SETTLED BY THIS

COURT.

This Court has consistently recog-

nized the importance of compelling a

witness to give testimony in the courts

of this land.

"{I]t is clearly recog-

nized that the giving of

testimony and the attendance

upon court or grand jury in

order to testify are public

duties which every person

within the jurisdiction of

the government is bound to

perform upon being properly

11 12

summoned, and for performance our country to "make a case" the D.E.A.

of which he is entitled to ° has stood by and allowed the administra-

no further compensation than tion of justice to rest upon the whim of

that which the statutes pro- a Mexican citizen who alone is left to

vide. The personal sacri- e decide whether he will testify in a case

fice involved is a part of in which he has participated.

the necessary contribution The Sixth Amendment's guarantee of

of the individual to the wel- ad compulsory process has consistently been

fare of the public." Blair upheld by this Court to be an essential

v. United States, 250 U.S. element of due process and fundamental

273, 281 (1919); Hurtado v. S fairness. Washington v. State of Texas,

United States, 410 U.S. 578, 388 U.S. 14 (1967). In the present case,

589 (1973). it is respectfully submitted that this

The case presently before the court in- ” court should decide that the conduct of

volves a situation where the government, the government officials has denied the

through an agent of the Drug Enforce- petitioners their Fifth Amendment right

ment Agency (D.E.A.) has created a » to due process, and their Sixth Amend-

Situation where a material witness, ment right to compulsory process.

essential to the presentation of a de- Specifically, the present case pre-

fense, is left beyond the subpoena 4 sents a situation where the D.E.A. em-

power of the United States. By em- ploys persons who are entirely outside

ploying Mexican citizens to come into the subpoena power of the United States,

to come in to the United States and try

to make a case in hopes of getting a

reward. The D.E.A. agent in charge of

these special employees has intention-

ally put himself in a position where he

cannot contact them; rather the in-

formers must instigate all contact.

The government has created a situation

where petitioners were denied vital

Fifth and Sixth Amendment rights.

The Ninth Circuit opinion, below,

represents a great departure from the

raditional view concerning the govern-

ment's duty with respect to informants.

Heretofore, in Velarde-Villareal v.

United States, 354 F.2d 9, 13 (9th Cir.

1965), the Ninth Circuit noted as

follows:

"The practice of the

government in employing

agent-informers in nar-

cotics cases is well

known. We also know that

such agents are usually not

trained officers--often they

are themselves addicts or

former addicts. The govern-

ment must know that an

eager informant is exposed

to temptations to produce

as Many accused as possible

at the risk of trapping not

merely an unwary criminal

but sometimes an unwary

innocent as well. One

could hardly expect such

informers always to stay

on the proper side of the

line which separates the two

cases. And since the govern-

ment chooses to utilize such

agents, with the attendant

risk of entrapment, it is

fair to require the govern-

15 e

ment which uses this in-

herently dangerous procedure Ps

to take appropriate pre-

cautions to insure that no

innocent man should be pun-

ished." Velarde-Villareal

v. United States, 354 F.2d

9 at 13 (9th Cir. 1965).

Later, the Ninth Circuit suggested

that conditioning future employment upon

the informant's availability as a wit-

ness was an appropriate guideline in

determining the reasonableness of the

government's effort to produce such an @

informant.

Yet, in the present case, the Ninth

Circuit has affirmed petitioners' con- e

victions where there has been no such

effort. Considering that the Velarde-

Villareal language has been universally bd

applied throughout the circuits, such a

vast departure from its holding merits

review by this court.

The Ninth Circuit, in its opinion,

below, has apparently also departed from

the principle that due process requires

that the defendant be given a chance to

confront witnesses before the actions of

the government place that witness beyond

the subpoena power. United States v.

Mendez-Rodriguez, 450 F.2d 1 (9th Cir.

1971). Yet, in the case presently be-

fore the Court, there is a situation

where the government, from the inception

of its actions, has been able to effect-

ively preclude the petitioners from

calling the one witness who can testify

in their behalf. Heretofore, the courts

have been unwilling to accept such a

blatantly unfair proposition.

"The thrust of Mendez-

Rodriguez (supra) is to pre-

vent the basic unfairness of

allowing the Government to

determine which witness will

not help either wide and then

to release those witnesses,

for all practical purposes,

beyond the reach of the de-

fendant. .. . The vice lies

in the unfettered ability of

the Government to make the

decision unilaterally."

United States v. Tsutagawa,

500 F.2d 420, 423 (9th Cir.

1974).

Petitioners submit that the actions of

the government have placed them ina

situation where the government has uni-

laterally placed a witness beyond the

subpoena power.

These important Fifth and Sixth

Amendment questions concerning the use

of foreign citizens in investigations

solely within the United States, need

to be resolved by this court. It is

respectfully submitted that the present

case presents an appropriate situation

for the court to rule on such issues.

THE "REASONABLE EFFORTS" STANDARD

APPLIED BY THE NINTH CIRCUIT BELOW

IS CONTRARY TO THE STANDARD USED

BY OTHER CIRCUIT COURTS OF APPEAL

AND, THUS,GIVES RISE TO A CONFLICT

AMONG THE CIRCUITS.

As noted by the dissenting

opinion below:

"(T]he majority's view that

the government carried its bur-

den of proving that it used reason-

able efforts to produce these

informants reduces that burden

to feather lightness. “Reasonable

efforts' in this case is diminis-

hed to ‘try a little." That re-

sult cannot be squared with the

concerns that engendered the rule."

(Dissenting Opinion of Judge

Hufstedler, Slip Opinion at p 14.)

The majority opinion has indeed

placed a new and unique interpretation

on what is called "the reasonable efforts”

standard. Such a break in the traditional

definition of what are"reasonable efforts"

places the Circuits in conflict as to

what guidelines are to be used in cases

where the "reasonable efforts" standard

is to be applied. One need only review

cases cited by the majority to realize

that there is substantial conflict among

the various circuits in the definition

and application of the "reasonable efforts"

standard.

The Thitd Circuit apparently

requires a far greater amount of diligence

when reviewing the reasonable efforts

standard. In United States v Jones,

492 F.2d 239 (3rd Cir. 1974), cited in

the majority opinion, the Court of Appeals

reversed defendants conviction for posses-

sion of heroin with intent to sell. The

facts surrounding the arrest of Jones were

similar to those involving the arrest of

petitioners in that an informant was used

to arrange a meeting between the defendant

and the government agent. When it became

apparent that the defense attorney would

need to speak with the informant, which

was not until the day of trial, the Govern-

ment made efforts to locate the informant.

Specifically, a telephone call was made to

the informant's residence in an attempt to

discover his whereabouts; the next day two

agents were sent to his presumed residence

and later to his place of employment; the

efforts to find the informant were unsuc-

cessful. The trial judge held that the

government had made reasonable efforts

to make the witness available to the defense

and the 3rd Circuit agreed that reasonable

efforts were expended with respect to those

two particular days. However, the Court

reversed holding that:

", . . here, more was required.

492 F.2d at 241.

The Court went on to note:

"if for legitimate reasons, the

government decides not to identify

the informant in advance of trial,

then absent special circumstances

it must take reasonable steps to

have him available when the case

is called, should the ruling in favor

of disclosure be made...

In this case the failure of the

government to undertake a serious

search for the informant in advance

of the date set for trial has not

be explained and hence in the cir-

cumstances here we do not consider

that the obligation to produce the

witness has been met."

United States v Jones, supra at 242.

In the case at bar, there are

even more compelling reasons to apply a more

stringent standard of reasonableness where

the informant is not a citizen of the United

States and is the only witness who can sub-

stantiate the defense. Furthermore, an

additional factor in the present case, which

was not present in Jones is the fact that

there was an already existing Court Order

requiring the government to produce the

informant Murrieta. This fact should also

militate in favor of requiring a more

stringent standard of reasonableness in

this case as the Government was made fully

aware, early in the case, that the presence

of Murrieta was required.

Similarly, in another case cited

by the majority, the First Circuit seems

to follow a more stringent standard when

a witness informant is unavailable to

the defense. The Court in United States v

Williams, 496 F.2d 378 (lst Cir. 1974)

noted that the defendant made a decision

not to press for the informer's presence,

supra at 382. It is also important to note

that the court, in affirming the conviction,

stated as follows:

"There is nothing in the record

to show that the latter (the infor-

mants) were under government's con-

trol or influence at the time of the

trial." Supra at 383.

The record herein indicates that Murrieta

was subject to government influence at the

time of the trial in that he was still in

the employ of the United States Government.

Furthermore, petitioners in this case con-

Ssistently sought the opportunity to inter-

view Murrieta and were repeatedly promised

that he would be made available.

In yet another case cited by

majority in support of their affirmance of

the conviction of petitioners, the Fifth

Circuit has given some indication that it

may have ruled contrary to the Ninth Circuit.

Specifically, United States v Tatum, 496 F.

2d 1282, 1284 (5th Cir. 1974) dealt with a

situation where the informers in question

were not beyond the subpoena power of the

Federal Courts. Similar to the instant

case, the government failed to produce the

informers. However, unlike the holding of

the 9th Circuit below, the Fifth Circuit,

in Tatum, noted as follows:

"We also rejects defendant's argu-

ment that the trial court erred

in not granting a continuance, for,

as we have noted, no motion for

continuance was made. .." (Emphasis

added) 496 F.2d at 1284.

Implicit in the Fifth Circuit's holding is

that if a motion to continue had been made

it should have been granted. This impli-

cation stands squarely in opposition to the

Ninth Circuits holding that the petitioners

were not entitled to a continuance under the

circumstances.

Thus, there is substantial differ-

ence and conflict among the various circuit

courts in what criteria should be utilized

under the "reasonable efforts" standard.

See, also, People v Goliday, 106 Cal. R. 113,

505 P.2d 537 (S.Ct., en banc, 1973). For this

reason, this court should grant certiorari

and review the present case.

Iit

THE APPLICATION OF THE "CLEARLY

ERRONEOUS" RULE OF REVIEW BY THE

NINTH CIRCUIT HEREIN WAS CLEARLY

INAPPROPRIATE AND DENIED PETITIONERS

THEIR RIGHT TO FULL AND COMPLETE

APPELLATE REVIEW.

The majority opinion rendered

on July 22, 1974, held that the review of

petitioners’ conviction was subject to the

"clearly erroneous" rule under which appel-

late review is limited to determining

whether a particular finding of fact is

"clearly erroneous." Relying on the belief

that the determination of the reasonableness

of the Government's efforts in producing

an informant is a question of fact, the

majority concluded that the trial judges

finding that reasonable efforts were

employed in this case was not "clearly

erroneous." Petitioners respectfully sub-

mit that the instant case was not a proper

one for the application of the "clearly

erroneous" rule and that by so applying said

facts. Indeed, on the issue of the reason-

rule, petitioners were denied their right to e ableness of DEA's efforts to produce the

full and complete appellate review. informant Murrieta, the only evidence

It is well settled that the "clearly supplied came from Agent Lugo. Thus,

erroneous" standard is only applied in re- ” there were no disputed facts to resolve.

view of findings which resolve disputed Accordingly, the "clearly erroneous" rule

facts. Fleischmann Distilling Corp. v had no application in review of the district

Maier Brewing Co., 314 F.2d 149 (9th Cir. ” court's determination of whether DEA em-

1963). In Fleischmann, the court went on p.oyed “all reasonable efforts: in attempt-

to note: e ing to produce Murrieta.

"When a finding is essentially one

dealing with the effect of certain

transactions or events, rather than

a finding which resolves disputed

facts, an appellate court is not

bound by the rule that findings e

shall not be set aside, unless

clearly erroneous, but is free to

Furthermo.e, the “reasonable efforts"

test is a legal standard and the determination

of whether that standard has been complied

with results in a legal conclusion. of course,

draw its own conclusions." (Emphasis

added) 314 F.2d at 152 n.2, quoting

with approval, Stevenot v sores

210 F.2d 615, 619 (9th Cir. 1954).

Clearly then, this rule of limited review

has no application in cases where the

disputed conclusion is one based on the

application of a legal standard.

In the instant case, the district

court had no occasion to resolve disputed

as Judge Hufstedler noted in dissent, the

reasonable efforts tests is not a legal

standard which exists separate and apart

from all factual matters. However, merely

because factual ingredients exist in this

legal standard does not change the resolu-

tion of this legal question into a factual

question. It seems clear that the resolution

29 i,

of this legal question is not a proper

subject for the application of the “clear-

ly erroneous" rule under the mandate of

Fleishmann Distilling Corp. v. Maier

Brewing Co., supra.

For all the foregoing reasons,

petitioners respectfully submit that

the "clearly erroneous" rule was in-

applicable to the instant case and that

by applying said rule herein, petitioners

were denied their right to full review

of the determination of reasonableness

made by the District Court.

CONCLUSION

The government in this case has

attempted to absolve itself from any

responsibility by its own, deliberate

premeditated ignorance. The government's

sins, both of omission and commission,

have split the Ninth Circuit Court of

Appeals asunder and driven the uneasy

majority of that learned court to the

misapplication of the "clearly erroneous"

rule and to articulate rationalization

in their effort to uphold the government

in spite of the constitution.

vor the foregoing reas ons, a Writ of

Certiorari should issue to review the

Judgment and Opinion of the Ninth Circuit

in the instant action.

RESPECTFULLY SUBMITTED the 16th day

of September, 1976.

222 North Court Avenue

Tucson, Arizona 85701

CERTIFICATE OF SERVICE

LAW OFFICES

JACK A. ETTYINGER, ; : lt

P oa 7 ia é Counsel for the petitioners avow

J that they depostied in the United States

it Post Office in Tucson, Arizona, with

6 111 S. Church ‘Avenue e ;

Tucson, rere 4 85701 first class postage prepaid, three (3)

‘ copies each of petitioners’ Petition

Attorneys for Petitioners @ for Writ of Certiorari to the United

@ ;

F States Court of Appeals for the Ninth

e Circuit, to:

PA HON. WILLIAM C. SMITHERMAN

e i ° United States District Attorney

d District of Arizona

Post Office Box 1951

Tucson, Arizona 85702

Counsel of record for the

United States of America

e e

and

SOLICITOR GENERAL

Department of Justice

Washington, D. C. 20530

e ®@

er 16, 1976.

ee -———~--—-—.

Appendix A

a Before: ELY and HUFSTEDLER, Circuit

UNITED STATES COURT OF APPEALS

and CONTI* District Judge

FOR THE NINTH CIRCUIT

HUFSTEDLER, Circuit Judge:

« Hart and Robles appeal their

UNITED STATES OF AMERICA,

convictions for distributing cocaine

Appellee,

* in violation of 21 U.S.C. § 84l(a) (1).

Vv.

No. 74-3270 e° The appellants, who were tried separate-

ROBERT DALE HART,

OPINION ly, sold cocaine to government agents

Appellant.

pursuant to arrangements made by paid

UNITED STATES OF AMERICA, informants. Their only defense was

ee eee ee eee ee ee ee ee ee ee ee

Appellee, entrapment.

Vv. The appeal presents two questions.

RUBEN MORALES ROBLES, © (1) Did the district court err in fore-

Appellant. closing Robles from raising the entrap-

ment defense because he refused to take

Apppeal from the United States e

the stand and there to admit the offense?

District Court

(2) Did the district court err in deny-

for the District of Arizona

ing the appellants' respective motions to

continue and,

*Honorable Samuel Conti, Northern

District of California, sitting by

designation.

iii

thereafter, to dismiss for failure of

the Government to produce the informant

Murrieta, who was a key figure in the

sale and upon whom the appellants depend-

ded to prove their entrapment defenses?

We answer both questions affirmatively

and reverse tne convictions.

Consideration of the first issue

requires no discussion of the underlying

facts. The district court ruled that

Robles could not raise entrapment without

taking the stand and admitting the offense,

and it rejected Robles' countering offer

of a statement in which he authorized his

counsel to make a formal admission before

the jury that he did the acts charged in

the indictment. Robles' counsel raised

the Fifth Amendment right not to incrimi-

nate oneself in defense of Robles' refusal

to take the stand. The district court

thereupon refused to permit Robles to raise

entrapment and forbade his counsel from

examining the Government's witness to whom

the sale _ made about the role that the

informant Murrieta played in bringing about

the sale. The district court plainly erred

in ruling that Robles had to admit the

offense from the stand to enable him to

raise the entrapment defense. The ruling

is unsupported by authority in this circuit,

it cannot be reconciled with the reasoning

of Sorrels v United States (1932) 287 U.S.

435; Sherman v United States (1958) 356 U.S.

369; and United States v Russell (1973) 411

U.S. 423; and it creates serious constitu-

tional problens.2/

Hart did not object to the court's

ruling that he could not rely on the entrap-

ment defense unless he took the stand and

admitted the offense. He complied, and there-

after he gave testimony which, if credited

1/ The constitutional arguments with

supporting authority are amply stated in

Groot, "The Serpent Beguiled Me and I (with-

out Scienter) Did Eat -- Denial of Crime and

the Entrapment Defense,” 1973 U. I11.L.F. 254,

269-75.

would have supported a finding of non-

suetienecitien and inducement by Murrieta.

The court gave entrapment instructions, and

the jury found him guilty.

In these cases we need not reach

the troublesome questions about what must

- be conceded and how a concession may be

made by means other than taking the stand

when a defendant relies on entrapment

because our disposition of the second

issue forecloses retrail of both appellants.

Murrieta was the key figure in

initiating the narcotics transaction, and

he, along with his fellow informant,

Borjorquez, participated in the negotia-

tions that culminated in the sale of Special

Agent Lugo, acting for the Drug Enforce

ment Administration ("DEA"). Upon motions

by the appellants, the district court on

June 17, 1974, ordered the Government to

produce Murrieta and Borjorquez for trial.

Pursuant to agreement of counsel, Borjorquez

appeared for a recorded interview on July

25, 1974, in which he described his recruit-

ment by Murrieta, supplied the address

of a store owned by Murrieta in Mexico,

and recited his and, in part, Murrieta's

dealings with Agent Lugo. He was unable

or unwilling to supply any of the criti-

cal details about Murrieta's conversations

with Hart anteceding the sale itself.

Borjorquez was not produced for pretrial

or for trial. Murrieta never appeared at

any time.

Murrieta and Borjorquez are. both

citizens and residents of Mexico. For about

a year and a half before the Hart-Robles

episode, DEA had used Murrieta's services

as an informant. Agent Lugo had employ-

ed Murrieta in 16 different investigations

during the period, 10 of which (including

that involving Hart and Robles) were conducted

aa viii

vii

: hee , a ar in Mexico. ver av

entirely within the United States. e yess ¢ co. The Government gave

* . . : a . : .

Murrieta owns a small store in Mexico. the informants no training and virtually

, . vi 4 . .

Borjorquez was a day laborer and field no supervision. The informants were

® =

worker whose total annual earnings, _ Simply unleashed to set up drug and nar

aside from informing, were about $400. cotics transactions in this country.

Neither informant was on a regular payroll. Murrieta picked his own investigatory

. ,

They were paid "rewards" for successful Sangess. When he wanted to report his

"investigations." DEA paid them nothing activities, he telephoned Agent Lugo.

if their activities did not produce an Agent Lugo never initiated calls; indeed,

e he did not know their hom e hone

arrest. If an arrest resulted, DEA * e telephon

, , , ; numbers, if any, or their home addresses.

increased their compensation proportion-

; H id learn t address of Murrieta’

ately to the amount of contraband seized. e did le he e urrieta’s

For their services in the Hart-Robles ” store during the Borjorquez interview.

matter, Murrieta was paid $950, and He also knew that the informants regular-

Borjorquez was paid $350. Murrieta was ly retreated to Mexico after an arrest.

regularly receivind very substantial pay- © Agent Lugo saw the informants from time

ments for his informing activities. to time, including an occasion when

Borjorquez knew that. a successful foray e Murrieta appeared to testify in another

into the United States could and did yeild trial in May 1974, after Hart and Robles

him almost as much money for a few days' had been arrested. At that time, the

work as he could earn at hard labor in a Government knew that Murrieta would be a

material witness in a later prosecution

of Hart and Robles.

We are aware of the critical role

that informants play in the detection and

apprehension of persons who are illegally

trafficking in narcotics and controlled

substances. The traffic is ugly, vicious,

and dangerous, and informing in these

cases is a perilous enterprise. We must

also recognize that the use of paid in-

formants entails great potential for abuse.

"{A]n eager informer is exposed to tempta-

tions to produce as many accuseds as

possible at the risk of trapping not mere-

ly an unwary criminal but sometimes an

unwary innocent as well." (Velarde-Villarreal

v. United States (9th Cir. 1965) 354 F.2d

9, 13.)°

The Government's use of these

informants in these cases presents grave

danger of abuse. The reward system

maximized temptation and control was mini-

mal. The Government knew that the informant

were reluctant to testify and that they

customarily returned to Mexico, outside

the reach of process.

The Government argues that it

should be excused from its failure to

produce the informants because it exerted

reasonable efforts to do so and it is not

a guarantor of production. The Government's

efforts to produce them were too modest ;2/

but even if it had tried harder, nonpro-

duction cannot be excused under the circum-

stances of these cases

2/ All that the Government did, act-

ing through Lugo, was request the infor-

mants to appear and secure their promises

to do so. These requests and promises

occurred during a series of telephone

conversations, initiated by the informants,

concerning another investigation. The

Agent continued to empicy the informants

and to accept their promises even after he

knew that Murrieta had failed to appear

when scheduled. The Government did not

withhold rewards from them; it did not con-

dition their continued employment on

appearance; it did not detain them as

material witnesses; it did not visit

Murrieta's store to persuade him to appear

and to offer him transportation from the store

xi _

xii

When it cooses to act through paid e

REVERSED AND REMANDED with

Mexican inforamnts in investigations

instructions to dismiss the

conducted entirely within the United

indictments.

States, the Government does become a @

CONTI, D.J:

“guarantor” pf tje appearance of in- :

I must respectfully dissent from

formants ordered produced. Upon failure

the opinion of my colleagues. For reasons

of the Government to produce the informants, ®@

expressed more fully below, I do not

the indictment must be dismissed. (Cf.

~~ believe a defendant can take advantage of

United States v Tsutagawa, (9th Cir.

the defense of entrapment without taking

1974) 500 F.2d 420.) Only by requiring e

the stand and admitting every element of

the Government to pay this cost for non-

the crime nor that the government is a

production can we adequately safeguard

guarantor for the appearance of an agent

against "rewarded" alien informants ®

allegedly responsible for entrapping the

entrapping the unwary innocent and assure

defendant.

defendants such as Hart and Robles a

As regards the district court's

fair trial. (Cf. Velarde-Villarreal v e

ruling that Robles had to admit the offense

United States, supra, 354 F.2d at 13,;

from the stand to enable him to raise the

United States v Walton (9th Cir. 1969 )

entrapment defense, I would affirm. My

411 F.2d 283.) ad a

colleagues suggest that such a ruling is

unsupported by authority in this circuit

to the courtroom. The agent did offer :

to drive them from Nogales to Tucson if e and is inconsistent with the reasoning of

they went to Nogales and called him. The

informants did neither. certain Supreme Court opinions. As the

xiii

issue herein presented is one of first

impression, not only in this circuit,

but apparently in other courts as well,

it is not surprising that authority in

support of the ruling is lacking. Con-

trary authority is also non-existent.

My reading of Sorrells v United

States, 278 U.S. 435 (1932), is apparently

at odds with that of the majority. The

Sorrells court quite clearly indicated

that a defendant who seeks to rely on

the defense of entrapment must expect that

his own conduct and predisposition will be

subjected to a demanding examination.

"... The predisposition and

criminal design of the defendant

are relevant. But the issues

raised and the evidence adduced

must be pertinent to the con-

trolling question whether the

defendant is a person otherwise

innocent whom the Government is

seeking to punish for an alleged

offense which is the product

of the creative activity of its

own officials. If there is the

fact, common justice requires

ivx

that the accused be permitted

to prove it. The Goverment in

such a case is in no position

to object to evidence of the

activities of its representatives

in relation to the accused, and

if the defendant seeks acquittal

by reason of entrapment he cannot

complain of an appropriate and

searching inquiry into his own

conduct and predispotition as

bearing upon that issue. If in

consequence he suffers a disad-

vantage, he has brought it upon

himself by reason of the nature of

the defense." (Emphasis added)

Ibid. at 451-52. +

Appellant would have us believe

that there is some sort of injustice in re-

quiring him to take the stand to assert his

1/ Language in Sherman v. United

States,356 U.S. 369 (1958) is to the same

effect, and is perhaps even stronger. There-

in the court, in an opinion by Cheif Justice

Warren, stated:

"., . . On the one hand, at trial

the accused may examine the conduct

of the government agent; and on

the other hand, the accused will

be subjected to an ‘appropriate

and searching inquiry into his

own conduct and predisposition'

as bearing on his claim of innocence."

Ibid. at 373.

XV xvi

entrapment and thereby expose himself to The majority state that the

cross-examination. I see no injustice there. district court's ruling is irreconcilable

Quite the contrary, such a requirment is a with the case of United States v Russell,

reasonable. If a defendant is to assert 411 U.S. 423 (1973), as well as with

the defense of entrapment, he should not be Sorrells and Sherman. Unfortunately, the

allowed to merely hide behind a bold profes- e basis of the supposed irreconcilability is

sion of lack of predisposition and criminal not made clear or even hinted at, and I can

intent and thereby force the government to find no reasoning in those opinions which

meet its burden of proof without subject- ° would — me to reverse the district court's

ing himself to an attack on his credibil- ruling.

ity and a challenge to his possible perjury.

The Sorrells language is clearly in accord. e

2/ My colleagues would also shy

away from affirming the district court's

My colleagues have suggested no way in ruling because it might create certain

which the searching inquiry apparently constitutional problems. My view of the

provided for by Sorrells and Sherman e possible constitutional complications is

is to be accomplished unless the defendant apparently more limited. Appellant

asserting entrapment is required to asserts that the lower court's ruling

take the stand. infringes his Fifth Amendment right

against self-incrimination. I cannot

agree. The law is well settled in this

o circuit that a defendant must admit to

committing all acts involved in the crime

in order to assert the defense of entrap-

ment. What remains to be protected then?

The Constitution promises no protection

which guarantees that a defendant's

e possible perjury (herein consisting at least

xvii

My colleagues would reverse

the convictions of both Robles and Hart on

the ground that the Government failed to

produce at trial the purported entrapper

Murrieta. I must disagree. The Government

was not the guarantor for the appearnace

of Murrieta, and it made reasonable efforts

to procure his appearance. Even if it is

conceded that the Government's failure to

produce Murrietta consitituted error, it

was not prejudicial as regards Robles, and

the remedy afforded appellants is too extreme.

of an implied, if not direct statement

that he was entrapped into the criminal

act) may go unchallenged. Assuming,

arguendo, that the district court's rul-

ing would raise constitutional problems,

let us examine those problems and not mere-

ly reverse in order to avoid confrontation.

xviii

Although such prejudicial error would

require reversal, the appellant should

be subject to a new trial at which the

Government would have the opportunity to

produce Murretta; dismissal of the cases

is not required.

I share the majority's concern

for the abuse that may result from the

use of informants. And I cannot dispute

that the reward system under which Murrietta

was working could increase temptation and

the potential for abuse. However, even

under the circumstances which were evi-

denced in the cases below, the Government

does not become the “guarantor” for the

appearance of an informant. The majority

cites no authority for holding the Govern-

ment to be a “guarantor", and none can be

found. In fact, the recognized authorities

are expressly to the contrary. Velarde-

xix

Villarreal v United States, 354 F.2d 9

(9th Cir. 1965), the leading case in this

circuit dealing with the Government's

obligation to produce an informant, is

cited by the majority to demonstrate the

court's recognition of the evils that can

attend the use of informants. The informant

and alleged entrapper in that case was,

as the counterpart in the case at bar,

a Mexican whose return to Mexico after the

arrest made him unavailable at trial. Not-

withstanding such circumstances and other

facts which make the Velarde-Villarreal

case noticeably similar to the case at bar,

the court in that case expressly rejected

the proposition that the Government is the

guarantor of an agent's appearance at trial:

"....I£ it were made to appear that

the Government, through reasonable

effort, could have produced

Margarito and yet failed to do so

when defendant demanded such pro-

duction, there should be a new

trial. On the other hand, if

the Government was actually unable

by reasonable effort to produce

him, we cannot hold that such

inability would require a dis-

missal of the case, unless

of course the Government itself

purposely saw to it that Margarito

disappeared, in the manner suggest-

ed hereafter. We know of no rule

that the Government is under any

general obligation to produce

an informer.

The right of a defendant to have

the testimony of such an informer,

where the defense of entrapment

is presented, is recognized in

United States v White, 2 Cir.,

324 F.2d 814, although the court

in that case noted that ‘Cases

in this circuit and others have

made it abundantly clear that the

Government is not the guarantor

of a special employee's appear-

ance at trial’.

In United States v Clarke, D.C.E.

D. Pa., 220 F. Supp. 905, 909,

the court granted the defendant a

new trial because it found the

Government had not shown it had

performed its ‘duty to expend

every reasonable effort to produce

{the informer] at trial’. The

defense there was entrapment.

The court said: ‘We think common

fairness made it the Government's

duty to produce Flores at the

trial, or, failing that, to show

xxi

that a reasonable efforts to pro-

duce him were fruitless'. Even in

that case, which goes as far as

any we can find in support of

appellant's position here, the

- Government's duty is merely one

of ‘reasonable effort' to produce."

Ibid. at 12. (Emphasis added).

Accord, United States v Pollard, 479 F.2d

310 (8th Cir. 1973).

It is thus evident that the majority

has gone further than any other court in

requiring the Government to produce an

informant at trial. I have found no author-

ity or acceptable rationale that calls for

that extension of the law under any circum-

stances. Even assuming that certain special

circumstances might justify such a result,

the instant case certainly does not present

such circumstances.

Applying the Valarde-Villarreal

test of “reasonable efforts" to the case at

bar, this court should affirm the findings

of the district court that the Government

had expended the requisite efforts and

xxii

should, therefore, not reverse the con-

victions on the basis o* Murrietta's absence

at trial. It must be remembered that the

question of whether the test has been met

is an issue of fact to be decided by the

trial court. Velarde-Villarreal,supra,

at 13. The trial court in the instant

case held that the test was satisfied

by the Government's efforts to produce

Murrietta. And unless that finding is

clearly contrary to the evidence before

that court, we must affirm that finding.

In examining the record to deter-

mine what efforts were made by the Govern-

ment to secure the presence of Murrietta

at trial, it should first be noted that

there was no evidence to support appellant's

suggestion that the Government told Murrietta

to secrete himself in Mexico and make him-

self unavailable as a witness. In fact,

xxiii

the evidence is to the contrary.

Murrietta had testified as a witness in

an earlier case of a similar nature, and

Special Agent Lugo, who had been involv-

ed in the arrests of appellants and who

had been the Government's main contact

with Murrietta, indicated under oath that

he had informed Murrietta on numerous

occasions that he was to make himself

available as a witness for the trials of

appellants. Appellants’ statement that

the Government did not know the informant's

home address or phone number is similarly

irrelevant. The Government knew where

Murrietta worked, and appellants were given

that information. This case is clearly

not one in which the Government intention-

ally chose not to know how to contact an

informant so as to justify its failure to

make contact with and produce the potential

witness. The record reveals that although

xxiv

Special Agent Lugo had to rely on collect

phone calls from the informants in order to

have contact with them, the contact main-

tained was relatively frequent during the

month preceding trial.

Between July 25, 1974, and the

date of trial, approximately three weeks

later, Lugo was in telephone contact with

the informants on at least a dozen occas-

ions, each time insisting on the importance

of their attendance at trial. He was assur-

ed by them that they would be there. On

the day before trial, Lugo insisted in no

uncertain terms that Murrietta be present

at trial and offered to pick him up at the

border and drive him to the court to appear

as a witness. Murrietta's appearance at

trial was once again promised.

The above facts were before the

trial court. Based upon them, the district

xXV

court found that the Government had “met

the burden it must bear" and had “done

everything reasonably necessary and proper

that [it] could be required to do lawfully."

It must be remembered that whether the Gov-

ernment has met its burden is a question of

fact to be decided by the trial court,

which decision is not to be reversed unless

there is no foundation for it. The record

obviously contains evidence which supports

the trial court's finding below, and it

should, therefore, be affirmed.

Even if I could accept the conclu-

sion that the Government's efforts to pro-

duce Murrietta did not meet the “reasonable

efforts" test or if I could convince my-

self to extend the law to made the Government

the "Guarantor" of his appearance, I would

still not be able to concur in my colleagues’

dismissal of the cases. Faced with a simi-

lar situation, the Velarde Villarreal

xxvi

court pointed out that, assuming the Govern-

ment could not meet its burden, a new trial

should be ordered, but that dismissal or

acquittal would not be appropriate. 354 F.

2d at 13. I would agree, and consider

the majority's remedy in the instant case

to be unwarranted. The dismissal ordered

by my colleagues is unnecessarily severe

and seems particularly inappropriate where

the dismissal is based upon a clear break

in the state of the law. My colleagues'

decision to hold the Government responsible

as a “guarantor” takes a position previous-

ly and expressly rejected by this circuit

in Velarde-Villarreal, and a position incon-

sistent with that expressed by any other

circuit. To now punish the Government which

followed the established state of the law,

by dismissing the cases against Robles and

Hart, rather than orderinga new trial at

xxvii

which the Government would: have an oppor-

tunity to follow the newly declared law

and “guarantee” Murrietta's presence, is

certainly excessive and unjust.

One final observation should be

made in regard to the appeals here con-

sidered. The majority opinion treats the

appeals of Robles and Hart as if both were

subject to the same factual background.

Such treatment is not only inaccurate, but

for certain important reasons, dangerously

misleading. The recordof the trials re-

veal that Murrietta made contact with Hart

and solicited the purchase of drugs from

him. It was Hart who then of his own

accord contacted Robles. To the extent

that Murrietta employed any coercive in-

fluence to obtain the drugs, it is clear

that all of those efforts were directed

at Hart. Murrietta had no direct contact

xxviii

with Robles until the time of the sale, and

Robles has not even suggested any evidence

which would indicate that Murrietta had any

effect on his actions. For the entrapment

defense to be available, the coercive

enticement must come from an agent of the

Government. As there is not even a hint of

evidence to suggest that Robles was entrap-

ped by Murrietta, the issue of entrapment

did not exist as to Robles. The failure of

Murrietta to appear at his trial is, there-

fore, of no consequence, and at most amounts

to non-prejudicial error.

I would affirm both convictions

for the reasons stated above, and assuming

reversal was required, would at most order

a new trial, rather than dismiss.

xxix

Appendix B

CAPTION OMITTED

PETITION FOR REHEARING AND SUGGESTION

OF REHEARING EN BANC

TO THE HONORABLE JUDGES OF THE UNITED

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT:

The appellee herein petitions for

a rehearing and suggests that the rehear-

ing be in banc, and the appellee hereby

shows to this Court the following facts:

On May 1, 1975 this Court reversed

the judgment of the Court below that the

plaintiff was not the "Guarantor" of the

appearances of an informant and that the

defendant was not allowed to invoke the

defense of entrapment unless he first

took the stand and admitted the offense.

In addition this Court ordered

the indictments as to these defendants

dismissed by the District Court.

xxx

The ruling in the present case

regarding the status of the Government

as a “guarantor” of the production of an

informant is directly in conflict with other

decisions of this Court, namely, United

States v Tsutagawa, (9th Cir., 1974) 500

F.2d 420, United States v Walton, (9th

Cir, 1969) 411 F2d 282 and Velarde-

Villareal v United States, (9th Cir.,

1965) 354 F2d 9.

With regard to the requirement

that the defendant take the stand and

admit the offense before he may invoke the

defense of entrapment the ruling in the

present case directly conflicts with the

decisions of the Supreme Court in United

States v Russell, 411 U.S. 423 (1974), Sherman

v United States, 356 U.S. 369 (1958)

and Sorrells v United States,287 U.S.

435 (1932).

xxxi

Finally, it is submitted that the

order dismissing the indictments in these

cases is inappropriate in as much as it

does not allow the Government an opportunity

to follow the newly granted law and produce

the informant at a new trial.

Petitioner respectfully requests

that this Court grant the petition for a

rehearing (and adopt the suggestion

that the rehearing be en banc) and that the

judgment of the District Court be, upon

further consideration, affirmed.

Respectfully submitted, ~

WILLIAM C. SMITHERMAN

United States Attorney

(SIGNATURE)

James E. Mueller

Assistant United States

Attorney

CERTIFICATE OF COUNSEL

I hereby certify that I have

examined the foregoing petition and that

in my opinion it is well founded and

xxxii

entitled to favorable consideration of

the court and that it is not filed for

the purpose of delay.

WILLIAM C. SMITERMAN

United States Attorney

(SIGNATURE)

James E. Mueller

Assistant United States

Attorney

CERTIFICATE OF SERVICE

Two copies of the foregoing

petition were mailed this 15th day of

May, 1975, to:

MICHAEL J. BROWN

222 N. Court Ave.

Tucson, Arizona 85701

Attorney for Appellant

ROBLES

Louis L. Deckter

614 Transamerica Bldg.

Tucson, Arizana 85701

Attorney for Appellant

HART

xxxiii

Appendix C

(CAPTION OMITTED)

Before: CHAMBERS, KOELSCH, BROWNING

DUNIWAY, ELY, HUFSTEDLER,

WRIGHT, TRASK, CHOY, GOODWIN,

WALLACE, SNEED, and KENNEDY,

Circuit Judges

Upon the Government's Petition

for Rehearing and Suggestion for Rehear-

ing En Banc, and pursuant to a vote of

the majority of the Court's judges now in

active service, it is Ordered:

1. The opinion of the panel

(Judges Ely and Hufstedler and the opinion

of Judge Conti, District Judge, dissent-

ing ) are withdrawn. (Slip Opinion May l,

1975).

2. The case is withdrawn from

the panel.

3. The Suggestion for Rehear-

ing En Banc is granted.

xxxiv

4. The parties will be here-

after notified whether oral arguments

will be entertained, and, if so, at what

time and place.

(SIGNATURE)

RICHARD CHAMBERS

CHIEF JUDGE

XXXV

APPENDIX D

CAPTION OMITTED

OPINION

Appeal from the United States

District Court for the District of

Arizona.

Before: CHAMBERS, KOELSCH, BROWNING,

DUNIWAY, ELY, HUFSTEDLER,

WRIGHT, TRASK, CHOY, GOODWIN,

WALLACE, SNEED, and KENNEDY,

Circuit Judges

TRASK, Circuit Judge:

Hart and Robles appeal their

convictions for distributing cocaine in

violation of 21 U.S.C. §841l(a) (1).

The appellants, who were tried separately,

sold cocaine to government agents pur-

suant to arrangement made by paid infor-

mants. Their only defense was entrapment.

The appeal presents two questions:

(1) Did the district court err in denying

the appellants’ respective motions to con-

tinue for failure of the government to

xxXxXVi

produce the informant Murrieta, who was

the key figure in the sale and upon whom

the appellants depended to prove their

entrapment defenses? (2) Did the district

court err in foreclosing Robles from

raising the entrapment defense because he

refused to take the stand and there to

admit the offense?

The court took this case en banc

to determine whether the government was a

"guarantor" of the presence of an in-

formant at the trial of a case in which he

had been used. We hold that it is not,

and adhere to the rule that the government

must use reasonable efforts to produce a

government informant whose presence has

been properly requested by the defendant.

United States v Leon, 487 F.2d 389 (9th

Cir. 1973); United States v Jenkins,470

F.2d 1061 (9th Cir. 1972); Tapia-Corona v

xxxvii

United States, 369 F. 2d 366 (9th Cir.

1966); Velarde-Villarreal v United States,

354 F.2d 9 (9th Cir. 1965).

The record discloses the esen-

tial facts. The government availed itself

of the services of two Mexican nationals

in the development of the case against the

appellants. Their names were Borjorquez

and Murrieta. The arrest and the trial

took place in Tucson and the court ordered

that the government agent, Lugo, "make

effort to locate informants and procure

their presence at trial." Borjorquez was

produced for interview on July 25 prior to

the scheduled August 13 trial of appellant

Hart to be followed immediately by the

August 14 trial of Robles. He was quest-

ioned in the courtroom with the court

interpreter assisting, and with the judge

announcing his availability if required.

xxxviii

Borjorquez identified both himself and

Murrieta as being residents of Magdalena,

Sonora, Mexico. He further explained that

Murrieta “has a little store, a general

merchandise store" where he sells groc-

eries and gave the street intersection

where the store was located. He stated

that Murrieta did not come for the inter-

view “because he's ill and apparently in

pain.”

On August 12, a hearing was held

on a motion to continue because Murrieta,

who by then and developed as the only

knowledgeable informer, had not appeared

for interview or for trial. Sepcial Agent

Charles Lugo of the Drug Enforcement Admin-

istration was questioned under oath. He

testified that his contact had principally

been by telephone conversations initiated

by Murrieta or Borjorgquez. He stated that

he had talked to them at least a dozen times

xxxix

between July 9 and August 12, telling

them they would have to be present for the

trial. He talked to them at least six times

after Borjorquez had appeared for his

interview on July 25. At no time did either

indicate he would not be present. The last

time he conversed with them was on Sunday,

August 11, when they called from Santa Ana,

Mexico. They assured him then, as they had

before, that they would be in Tucson for

pretrial interview on the following day,

Monday, and for the trial on Tuesday.

At the conclusion of this evident-

iary hearing on Monday the trial court

denied the motion to continue with leave

to renew it on Tuesday if Murrieta still

had not appeared. On Tuesday, the day of

trial, Murrieta had not arrived and a fur-

thur hearing was held. Lugo told the court

he had received a telephone call from

Borjorquez after he returned to his office

ivl

on Monday following the evidentiary

hearing. Lugo related he had told Bor-

jorquez in very strong terms to get

Murrieta and come to Tucson at once. He

also told them to call him from Nogales,

at the border, and that he (Lugo) would

pick them up and drive them to Tucson. He

had received no further word.

Lugo also amplified his testimony

regarding employment of informants by ex-

plaining that when they are "first documented

as informants” they are advised that the

DEA requires that if they parricipate in

a case in any way and are asked to testify

they must be present to testify. "That's

one of the requirements for informants. "2/

He further stated that to his knowledge

neither had been in the United States and

available to subpoena, since the Borjorquez

interview on July 25. On one occasion he

had sent $20 to them to come up but they

ivli

had not done so. The court denied the

motion for a continuance and the motion to

dismiss as to each defendant. 2/

It was suggested at oral argument

that Murrieta\ could have been "detained" as

a material witness when he appeared and

testified for the government as an informant

in a case in mid-May of the same year that

was tried in the United States District Court

in Tucson. This is probably correct. See

United States v. Verduzco-Macias, 463 F.2d

105 (9th Cir. 1972); Bacon v United States,

449 F.2d 933 (9th Cir. 1971). At least

some inducement such as retention of a

portion of the reward until the case was

closed, could have been made. But this case

is not akin to Bacon or Verduzco-Macias.

There the putative witnesses were fugi-

tives; they had not only shown a disin-

clination to cooperate but the Mexican

aliens were subject to possible imprisonment

ivlii

should the government have wished to indict

and prosecute. Every self-interest was on

the side of their fleeing the jurisdiction.

Here, Murrieta up to that mid-May (the

date of his last physical presence in the

United States) had always been cooperative.

He had promised to testify in court in May

in a narcotics case and had appeared and

testified as he had promised. He had not

at that time refused to cooperate in any

respect so far as the record shows. Neither

had he failed to keep any commitment to

testify. Had he been taken into custody at

that time when there was no apparent reason

to distrust him, he might well have been a

very unhappy witness to be kept away from

his home, his family and his business from

mid-May until mid-August. It was also

argued that the government might have with-

held a portion of his reward. Again, he

ivliii

had presumably been paid before and had

still cooperated. Under the Department's

requirements to be available to testify

he still risked the loss of future re-

wards if he failed to appear when re-

quested. Was there any reason as a matter

of foresight for Lugo to believe that this

case was different?

The dissent acknowledges that the

government must only use reasonable efforts

to produce the informant. Part of the

difference between the majority ration-

ale and the dissent is the point at which

"reasonable effort" is to be judged. We

believe it to be as of the time the govern-

ment is exerting its efforts to obtain the

attendance of the witness, taking into

consideration the background of perfor-

mance and attitude of the desired witness

as of that time. That would ordinarily be

after the trial date had been established

ivliv

and as the case was progressing to the

actual finalized trial date. At the

time Murrieta was last in the United States

as far as the evidence shows, (mid-May

before the August 13 trial date) the trial

date had not been established finally.

Certainly as of that time there was no

reason to suspect that future perform-

ance would be any less than the 100 per-

cent performance of the past. |

After Murrieta had returned to

Mexico there was nothing to do but to

accept his promises as given with the

expectation that he would fulfill then,

together with the inducements of expense

money and travel assistance. As of now

the record is, of course, silent as to

whether Murrieta was on his way, met with

accident, remained ill or otherwise

unable to fulfill his promise or whether

he was simply recalcitrant. Just as ex

, : -ivlv

post facto verification of the cor-

rectness of a tip from an informer by

discovery of the contraband does not

justify a finding of probable cause

based upon the tip alone, United States’

v Moreno-Buelna, 524 F.2d 1129, 1133

(9th Cir. 1975), (Hufstedler, J., dissent-

ing), so, too, in this case, the view

from perfect hindsight disclosing that an

informer did not in fact show up for a

trial, does not thereby establish con-

clusively that there was no reasonable

effort made to produce him, or by him to

appear.

All of which brings us to the all

important consideration of the function of

the trial judge at this point and the

effect of his determination. His finding

was that the government had met its burden.

"They've done everything reasonably neces-

sary and proper that they could be requried

ivlvi

to do lawfully, to get these witnesses

here.” The trial court had held two

evidentiary hearings before making this

determination. We hold that the trial

Court's finding should be sustained unless

Clearly erroneous and that it was not

clearly erroneous under these circumstances.

This court sitting en banc held

in United States v Page, 302 F.2d 81 (1962),

that the clearly erroneous rule applied in

criminal cases by analogy to Rule 52(a),

Fed. R. Civ. P., when the trial court rules

upon the admissibility of evidence in the

face of a motion to suppress. The motion

to suppress was based upon the contention

that a consent to search had not been

validly given. This court decided in Page

that it was for the trial court to determine

given certain facts, whether consent had

been given in form and whether that consent

was “valid” else it was no legal consent.

ivlvii

In Robles and Hart the court hears

certain facts and must determine whether

the government did everything “reasonably

necessary" to obey its order to produce an

informant. In Page we held that the ques-

tion was one of fact and was governed by

the "clearly erroneous” rule. Our view

is that the same rule applies mm

In each case the responsibility

of the trial court could be argued to

involve a mixed question of fact and of

law -- in the case at bench, "reasonably

necessary" versus the case in Page "no

duress or coercion, express or implied”

and "freely and intelligently given."

This court in cases subsequent to Page

has adhered to the rule that questions of

fact (even where arguably mixed with law)

in criminal matters are governed by the

clearly erroneous rule. Other juris-

ivlvii

dictions have applied the same test, some

without considering the fact that Rule 52(a)

Fed. R. Civ. P. only applies directly to

civil nes”

Nor can it be convincingly estab-

tished that the pretrial ruling was a "con-

clusion of law" and therefore not subject

to the clearly erroneous rule. The cases

cited in notes 5 and 6, supra, which applied

the clearly erroneous rule, could all argu-

ably be considered to involve a qi >stion of

law as well as a finding of fact. In

Lundgren v Freeman, 307 F.2d 104 (9th Cir.

1962), we discussed the distinction between

findings of fact to which the clearly

erroneous rule applied and, borrowing from

Commissioner v Duberstein, 363 U.S. 278

(1960), decided that "“[a] finding of fact

to which the clearly erroneous rule applies,

is a finding based on the ‘fact-finding tri-

bunal's experience with the mainsprings of

ivlviii

human conduct’. Lundgren v Freeman,

supra at 115. In Velarde-Villarreal v

United States, 354 F.2d 9, 13 (9th Cir.

1965), the very issue was decided by this

court: "We think whether there was a

failure to expend every reasonable effort

to obtain the witness is a question of

fact for the trial judge.” Here, the trial

court had before him the agent who was

responsible for Murrieta's presence at

the pretrial and trial proceedings.

As a “border court" the judge was familiar

with the problems of obtaining Mexican

aliens to testify and the means which

could be said to be reasonable or lack

reasonableness to obtain their testimony.

He held two evidentiary hearings to assure

himself that reasonable efforts had been

made. It was for him to measure the quality

of the effort and the sincerity of the

ivlix

officer's words and actions.

Other circuits faced with the same

problem have not gone beyond the “reason-

able effort" stentest.” None has been

found which has required that the govern-

ment “guarantee” or "insure" the predence

of the witness and we decline to do so

here. That this informer lives south of

the border does not alter our conclusion.

An informer can go underground in New York

City, Chicago or Los Angeles and be just

as unavailable for pretrial or trial, and

the same rules should and do apply. The

informants here went back to Mexico be-

cause it was where he lived and where Mur-

rita had his store and Borjorquez earned

his small Livelihood.”

In sum, we are unable to say that

the finding of the trial court that the

government used reasonable efforts to

produce these informants was clearly

erroneous. It must be remembered that it

was the trial court which heard testi-

mony or direct and cross-examination at

two evidentiary hearings; that it was the

trial court which observed the demeanor of

the witnesses; and most importantly that

it was the trial court which considered

the options available to the agent at the

time he made his decision and measured the

reasonableness of the agent's actions against

the facts and options available to him at

that eime.” It is not our role as an

appellate court to try this case de novo.

The decision of the trial court

that the government did exert reasonable

efforts to produce the informers, is

affirmed, and appellants’ motion to con-

tinue was thus properly denied.

11/

In requiring Robles to admit

the’ offense as a condition to his asserting

entrapment, the district court relied on the

Eastman line of cases that we overruled

in United States v Demma, 523 F.2d 981

(9th Cir., en banc, 1975). Demma applies

to Robles whose appeal was pending when

Demma came down. None of the doctrines .

that have been developed to limit the retro-

spective effect of new rules of law upon

pending cases has any application to Demma.

That decision announced no new rule of law;

it did not represent any “sharp break in the

web of the law" (Milton v Wainwright, 407

U.S. 371, 381 n.2 (1972) (Stewart, J. dis-

senting). Indeed, Demma, mended a break

in the law caused by the aberrational

Eastman cases and its spawn and reconciled

the law of our Circuit with Sorrells v

lii

United States, 287 U.S. 435 (1932);

Sherman v United States, 356 U.S. 369

(1958), and United States v Russell,4il

U.S. 423 (1973). The special retro-

activity doctrines affecting the exclu-

sionary rule stated in United States v

Peltier, 422 U.S. 531 (1975), are irre-

levant. Equally remote from the Demma

context are those cases that have given

limited retrospective application to new

‘prophylactic procedural rules, for

example, Halliday v. United States, 394

U.S. 831 (1969), holding that McCarthy v

United States, 394 U.S. 459 (1969), was

not retroactive to guilty pleas taken be-

fore McCarthy was decided. The Eastman

error is grounds for reversing Robles'

conviction.

Upon remand, the defendants and

the government will have the opportunity

to present the issues in the light of the

liii

factual and legal developments that have

occurred since these cases were tried.

As to defendant Hart, the judg-

ment of the court below is affirmed.

As to defendant Robles, the judgment is

reversed and remanded for proceedings not

inconsistent with this opinion.

Footnote l (Reference ivl)

"THE WITNESS: When they were

first documented as informants, they

were advised that the procedure of the

Drug Enforcement Administration, one of them

is that if they participate in any way or

conduct any introductions and we ask them

to come to court, or the defense requests

them to come to court, to testify on be-

half of the Government, that they will be

present to testify. That's one of the re-

guirements for informants.

"Q. BY MR. KNAUSS: Is that done

as a matter of standard procedure in your

agency?

"A. Yes, sir, it is, sir.

"Q. Did you do it yourself

personally?

"A. Yes, sir.

liv

"Q. Is this done with both Mr.

Borjorques and Mr. Murrieta?

"A. Yes, sir, I did.

"Q. Did you remind them of that

procedure during any of your calls that

have told us about?

"A. Yes, sir. But it was indirect-

ly referring to the other case that they had

been up here before on. And I told them,

that, well, I know they didn't like the

idea of testifying, but I told them that

regardless of whether or not they liked

it or not, anytime they did a case and they

got paid by the Government for doing it,

that they were part of the case and they

were required to testify, they would have

to testify.” R.T. Vol. 4 at 36-37.

Footnote 2 (Reference page ivli)

"It appears to me that the Govern-

ment has met the burden that they must

bear. They've done everything required

to do lawfully, legally to get these wit-

nesses here. The defendants have a little

obligation themselves. They've known who

these witnesses are, and have known basic-

ally where they are. They were--had an

opportunity to interview one of them for

three hours or better. I think we've bent

over backwards for the defendants in this

case and have given them far more latitude

than I know of any case that says we must

give a defendant under the circumstances."

R.T. Vol. 4 at 42.

Footnote 3 (Reference page ivlvii)

Said this court in Page at 83:

"The government must prove that

consent was given. It must show that there

was no duress or coercion, express or im-

plied. The consent must be ‘unequivocal

and specific’ and ‘freely and intelli-

gently given.' There must be convincing

evidence that defendant has waived his

rights. There must be clear and positive

testimony. ..."

Footnote 4 (Reference page ivlvii)

In Page the trial court's finding

was reversed but because the trial court

mistakenly assumed that as a matter of

law because of a prior ruling, he was

obliged to make the ruling that he did.

Footnote 5 (Reference page ivivii)

E.g., United States v Trice,

476 F. 2d (9th Cir. 1973) (finding

corroboration of informant's testimony

sufficient not clearly erroneous); Mc

Kinney v United States, 487 F.2d 948 (9th

Cir. 1973) (finding that a defendant had

not met burden of proof of incompetency

to stand trial not clearly erroneous) ;

Costello v United States, 324 F.2d 260

(9th Cir. 1963) (clearly erroneous rule

applied in considering whether evidence

sustained finding that officers who

arrested defendant acted upon probable

cause).

lvi

Footnote 6 (Reference page ivlvii)

E.g., United States v Jones,

475 F.2d (Sth Cir. 1973) (Whether

defendant's statement as to where

stolen money was hidden was voluntary

judged by clearly erroneous test) ;

United States v Conner, 478 F.2d 1320

(7th Cir. 1973) (whether facts disclosed

constituted reasonable grounds for arrest

without warrant measured by clearly erroneous

standard). See also 9 Wright & Miller,

Federal Practice and Procedure, { 2573,

at 689 (1971 ed.}; Leon v United States,

382 F.2d 232, 234 (8th Cir. 1967).

Footnote 7 (Reference page ivlix)

The dissent states in support

of an innuendo of a lack of due process

that "Neither is it simple to decide

whether the Government has participated,

by ‘suggestion, procurement, or negligence’

in the unavailability of a witness, which

is a denial of due process (United States

v Mendez-Rodriquez (9th Cir. 1971), 450

F.2d 1, 5; United States v Tsutagawa

(9th Cir. 1974), 500 F.2d 420), and a

failure to use reasonable efforts to

produce a government informant whose de-

parture was aided by his reward money,

which onl tentially leads to a dismissal

of an Tontceeose (Emphasis added.) The

insinuation that the government has

“participated” in the absence of the witneses

is not supported by any evidence in the

record and the trial court so found.

lvii

Footnote 8 (Reference page ivlix)

Unites States v Williams, 496

F.2d 378, 382 (lst Cir. 1974); United

States v Super, 492 F.2d 319, 321 (2d Cir.

1974); United States v Jones, 492 F.2d

239, 242 (3rd Cir. 1974); United States v

Tatum, 496 F.2d 1282, 1284 (Sth Cir. 1974);

United States v Canster, 419 F.2d 942,

954 (7th Cir.), cert. denied, 397 U.S.

1029 (1970).

This circuit has followed

Page a half dozen times and as recently as

United States v Townsend, 510 F.2d 1145,

1147 (1975). Other Ninth Circuit cases are:

United States v Chase, 503 F.2d 571, 572

n.3 (1974); United States v Agosto, 502 F.2d

612, 514 (1974); United States v Phelps,

490 F.2d 644, 646 (1974); United States v

Roghman, 492 F.2d 1260, 1264 (1973) United

States v Marshall, 488 F.2d 1169, 1186

(1973). Page has been followd by the Sixth

Circuit, United States v Gargotta, 510 F.2d

409, 411 (1974); by the D.C. Circuit,

Jackson v United States, 353 F.2d 862,

865 n.4 (1965); and by the Tenth Circuit,

Martinez v United States, 333 F.2d 405,

407 (1964).

Footnote 9 (Reference page ivlix)

The dissent implies that the

payment of the reward financed or "assured

them adequate funds" to return to Mexico .

There is no evidence to support such a

suggestion. A hold out of payment due them

would have created an inducement. There

is net evidence that it would have accom-

plished its purpose.

lix

aes ® UNITED STATES v HART - No. 74-3001

Footnote 10 (Reference page 1) UNITED STATES v ROBLES- No. 74-3270

DUNIWAY, Circuit Judge (Concurring and

We note that the options avail- dissenting) :

able to the government to pay or not to

pay the informants and to detain or not to e

detain Murrieta were all made prior to

any record of broken promises. There was

never any indication that the government

participated, by suggestion or by procure-

ment, in the unavailability of the witness.

Like Judge Hufstedler, I concur

in Part II of Judge Trask's majoirity

opinion. In all other respects, save one,

Footnote 11 (Reference page li) I join in Judge Hufstedler's dissent. I

. This portion of the opinion was differ with Judge Hufstedler in her view

prepared by Judge Hufstedler for an earlier

draft and is used with her permission,

having met the approval of a majority of the

Court.

that the question before us is a question

of law. I think that Judge Trask is right

in saying that the question is whether the

court's finding that the government used the

a required reasonable efforts to produce

the informants is clearly erroneous. Un-

like Judge Trask, however, and like Mudge

” Hufstedler, I am convinced that the findc-

ings is, in these cases, clearly erroneous,

7 for the reasons stated by Judge Hufstedler

in also concluding that there was error as

a matter of law. I am “left with the definite

and firm conviction that a mistake has been

committed." United States v United States

Gypsum Co., 1948, 333 U.S. 364, 395.

Therefore, I concur, exvept in this one

respect, in Judge Hufstedler's dissent.

UNITED STATES v HART, ROBLES - Nos.

74-3001/3270

ELY, Circuit Judge (Concurring and Dissent-

ing):

I concur in my Sister Hufstedler's

opinion, based, as it is, on the solid

precedential authorities of our court.

I would go farther, however, since I adhere

to the views that I long ago expressed in

Velarde-Villarreal v United States, 354 F.2d

9 (9th Cir. 1965), particularly in the last

two paragraphs thereof at pages 15 and 16.

SIGNATURE

W. ELY

CIRCUIT JUDGE

lxi

United States v Hart and Robles-

74-300173270 - EN BANC

HUFSTEDLER, Circuit Judge, concurring

and dissenting:

I concur in Part II of the

majority opinion holding the United States

v Demma (9th Cir. en banc 1975) 523 F.

2d 981 is retroactive, and reversing Robles'

conviction. I dissent from the remainder

of the opinion.

The majority opinion places the

activities of the Government and those of

the informants in a more benign light than

is warranted under all of the circumstances.

As the Government knew all along, Murrieta

and Borjorquez are both citizens and resi-

dents of Mexico. For about a year and a

half before the Hart-Robles episode, DEA

had used Murrieta's services as an infor-

mant. Agent Lugo had employed Murrieta in

16 different investigations during the period

lxii

10 of which (including that involving

Hart and Robles) were conducted entirely

within the United States. Murrieta owns

a small store in Mexico. Borjorquez was

a day laborer and field worker whose

total annual earnings, aside from in-

forming, were about $400. Neither informant

was on a regular payroll. They were paid

"rewards" for successful "investigations."

DEA paid them nothing if their activities

aid not produce an arrest. If an arrest

resulted, DEA increased their compensation

proportionately to the amount of contra-

band seized. For their services in the

Hart-Robles matter, Murrieta was paid

$950, and Borjorquez was paid $350.

Murrieta was regularly receiving very

substantial payments for his informing

activities. Borjorquez knew that a suc-

cessful foray into the United States could

lxiii

and did yield him almost as much money for

a few days' work as he could earn at hard

labor in a year in Mexico. The Government

gave the informants no training and virtual-

ly no supervision. The informants were

simply unleashed to set up drug and nar-

cotics transactions in this country. Mur-

rieta picked his own investigatory targets.

When he wanted to report his activities,

he telephoned Agent Lugo. Agent Lugo

never initiated calls; indeed, he did not

know their home telephone numbers if any,

or their home addresses. He did learn

the address of Murrieta's store during the

Borjorquez interview. He also knew that

the informants regularly retreated to Mexico

after an arrest. Agent Lugo saw the infor-

mants from time to time, including an

occasion when Murrieta appeared to testify

in another trial in May 1974, after Hart and

lxv

lxiv

dangerous procedure to take appropriate

Robles had been arrested. At that time, °

precautions. to insure that no innocent

the Government knew that Murrieta would be

man should be punished.” (Id.) We there-

a material witness in a. later prosecution

upon imposed on the Government the burden

of Hart and Robles. ad

of proving that it used reasonable efforts

The Government's use of these alien

to produce a Government informant whose

bounty hunters created grave dangers of

presence has been appropriately requested

abuse. These informants had neither know- ad

by a defendant.

ledge of legal limitations upon the conduct ‘

of American law enforcement personnel nor

The clearly erroneous standard

any motivation to respect the rights of °

standard of review does not apply to our

those whom they chose as targets. The

determination of the question whether the

reward system maximized the "temptations

e district court correctly applied the reason-

to produce as many accuseds as possible at

able efforts test to the undisputed facts,

the risk of trapping not merely an unwary

but, even if the standard were applicable,

criminal but sometimes an unwary innocent

| ° the district court's decision should be re-

as well." (Velarde-Villarreal v United

versed.

States (9th Cir. 1965) 354 F.2d 9, 13.)

prmiaanangcn! The district court did not make

"(SJince the Government chooses to utilize

rs any factual findings, and there was no

such agents, which the attendant risk of

occasion for them. Assuming, as we do, that

entrapment, it is fair to require the

the court believed Agent Lugo's testimony,

Government which uses this inherently -

lxvi

no factual issues were presented for the

court to resOlve. Our court has held

repeatedly that the clearly erroneous

standard is irrelevant to a conclusion

based on the application of a legal standard,

even if that conclusion is labeled a find-

ing of fact. "When a finding is essentially

one dealing with the effect of certain trans-

actions or events, rather than a finding

which resolves disputed facts, an appellate

court is not bound by the rule that findings

shall not be set aside, unless clearly

erroneous, but is free to draw its own con-

clusions." (Fleischmann Distilling Corp.

v. Maier Brewing Co. (19th Cir. 1963) 314

F.2d 149, 152 n.2, Quoting with approval

Stevenot v Norberg (9th Cir. 1954) 210

F.2d 615, 619. Accord: Lungren v Freeman

(9th Cir. 1962) 307 F.2d 104, 115 (collect-

ing numerous cases.).)

lxvii

To be sure, the reasonable efforts

test is not a legal concept that is drained

of all factual essences. Conduct cannot be

deemd reasonable or unreasonable in a factual

vacuum. Conduct that is reasonable under some

circumstances is wholly unreasonable under

others. Reasonableness rules have developed

in many areas of the law in recognition that

per se rules are often unworkable, and, even

if they are workable, they would tend to

defeant the very purposes of the law that

they were intended to implement, or they

1/ These are civil cases, but no reason

exists to apply—a more restrictive stan-

dard of appellate review to criminal cases.

On the contrary, a respectable argument can

be made that deeper, rather than shallower

appellate scrutiny should be given to

criminal cases because the societal and

personal stakes in criminal cases are often

larger than in civil cases.

lxviii

would produce results that would be

generally perceived as unjust or downright

foolish. For example, we would not attempt

to justify a rule that a reasonable time to

perform a contract is always ten days.

The existence of factual ingre-

dients in the legal mix does not transmute

the application of this legal standard into

factual question. Our obligation to inquire

into the-propriety of the district court's

application of the reasonable efforts test

is akin to the inquiry that we constantly

make into the sufficiency of evidence

to sustain a finding or a judgment. After

giving the trier of fact all of the intend-

ments that are the trier's due, we must

confront the legal question of sufficiency

of the evidence or reasonableness of the

Government's efforts without the novocaine

of the clearly erroneous rule. It is no

1lxix

more possible to state a precise for-

mula for measuring this kind of legal

error than it is to produce an encompassing

definition of what is reasonable under the

circumstances. The components of the dist-

rict court's conclusion are a blend of

factual determinations and decisions on

issues of law. Even questions of the re-

levance of evidence combine facts with law.

Consideration of steps that the Government

could have but did not take is as relevant

to the reasonableness decision as is con-

sideration of the steps the Government did

cake. But the availability of alternatives

hinges on questions of law as well as of

fact, and questions of policy as well as

interpretation of precedents.

The majority's view that the Gov-

ernment carried its burden of proving that

it used reasonable efforts to produce these

1xx

informants reduces that burden to feather

lightness. "Reasonable efforts" in this

case is diminished to "try a little."

That result cannot be squared with the con-

cerns that engendered the rule. The rule

was created to minimize the risk of entrap-

ment that "this inherently dangerous pro-

cedure" produces and to minimize the risk

that unbridled governmental zeal will trench

upon a defendant's constitutionally guar-

anteed right to a fair trial. The line

between creating opportunities for crimi-

nally disposed persons to follow their bent

and entrapping the unwary innocent is not

easily drawn. Neither is it simple to

decide whether the Government has partici-

pated, by “suggestion, procurement, or

negligence," in the unavailability of a

witness, which is a denial of due process

(United States v Mendez-Rodriquez (9th

Cir. 1971) 450 F.2d 1, 5; United States v

lxxi

Tsutagawa (9th Cir. 1974) 500 F.2d 420),

and a failure to use reasonable efforts to

produce a government informant whose depar-

ture was aided by his reward money, which

only potentially leads to a dismissal of

an indictment. I cannot contenance any

lightening of the Government's burden of

proving reasonable efforts in terrain as

ringed as this is with the dangers of

entrapment and of due process deprivation.

The Government failed to carry its reasonable

efforts burden in these cases.

I could not join the majority opin-

ion even if I thought that the clearly

erroneous standard was a-propriate. As

Judge Learned Hand observed: "It is

idle to try to define the meaning of the

phrase ‘clealy erroneous'; all that can be

profitably said is that an appellate court,

1xxii

though it will hesitate less to reverse

the finding of a judge than that of an

administrative tribunal or of a jury,

will nevertheless reverse it most re-

luctantly and only when well persuaded."

United States v Aluminum Co. (2d Cir.

1945) 148 F.2d 416, 433. See also

5A Moore's Federal Practice (1975 ed.)

q@ 52.03[(1], pp. 2613-2627.)

I am well persuaded that the

evidence was insufficient to establish

that the Government's efforts were rea-

sonable under the circumstances. The only

efforts that the Government made to pro-

duce the informants were those of Agent

Lugo. In several telephone conversations

initiated by the informants, he asked them

to appear, and one or both of them promised

to do so. He also offered to drive them

from Nogales to Tucson, if they would leave

xxiii

Mexico, travel to Nogales, and call him.

They did not comply. He relied on their

promises to appear made during his tele-

phone convesations with them even after

Murrieta broke his earlier promise to

attend a scheduled pretrial interview.

Although the Government knew that both

were potential material witnesses and

that Murrieta was a key witness, it paid

them in full for the Hart-Robles set-up

and continued to employ them for other

investigations. Although Murrieta and

Borjorquez were cooperative in the bounty

hunting phase of their activities, the

Government knew that they were reluctant

to be witnesses. Murrieta had appeared once

in a different case; he never made any

appearance in the Hart-Robles cases and

repeatedly broke his promises to do so.

Borjorguez never testified in any case,

but he did appear for one interview. He

lxxiv

too, repeatedly broke his promises to

Agent Lugo. The Government also knew that

both informants regularly left the country

and could not then be reached by process.

Despite that knowledge, the Government did

not detain then as material witnesses,

nor did it arrange to take their testimony

by deposition. (18 U.S.C. § 3149; Rule

46(b)) Fed. R. Crim. P.; United States v

Verduzco-Macias (9th Cir. 1972) 463 F.2d

105; Bacon V. United States , (9th Cir.

1971) 449 F.2d 933.) It did not withhold

their pay. (Contrast United States v

Verduzco-Macias, supra.) On the contrary

the Government paid them in full, thus

assuring them adequate funds to arrange their

own transportation to Mexico.

Accordingly, I would reverse

both convictions and remand the cases to

the district court for further proceedings

Lxxv

consistent with the views herein expressed.

Circuit Judges Koelsch, —

and Kennedy concur in Judge Hufstedler's

concurring and dissenting opinion. Circuit

Judge Ely concurs in Judge Hufstedler's

opinion and files a separate opinion. Judge

Duniway concurs in part B of Judge Hufs-

tedler's concurring and dissenting opinion,

and files a separate opinion.

APPENDIX E

lxxvi

CAPTION OMITTED

On Appeal from the Judgment

of the United States District Court

For the District of Arizona

MOTION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

PREPARED BY MICHAEL J. BROWN, P.C.

222 North Court Avenue

Tucson, Arizona 85701

Attorney for Appellant

(TABLE OF CONTENTS OMITTED)

AUTHORITIES:

Fifth Amendment to the United States

Constitution

Sixth Amendment to the "nited States

Constitution

SUGGESTION FOR REHEARING EN BANC

TO THE HONORABLE JUDGES OF THE UNITED

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT:

COME NOW the appellant and

suggests that it would be appropriate

for this matter to be heard en banc,

since the decision was rendered en banc.

RESPECTFULLY SUBMITTED this 3rd

day of August, 1976.

lxxvii

MICHAEL J. BROWN, P.C.

Attorney at, Law

222 North £ourt Avenue

Tucson, Arizona 85701

(SIGNATURE)

Attorney for Appellant

MOTION FOR REHEARING AND MEMORANDUM

COMES NOW the appellant, RUBEN

MORALES ROBLES, by his attorney, MICHAEL J.

BROWN, P.C., and respectfully petitions

this penseabie Court for a rehearing of

the above case for the following reasons

and upon the following grounds:

The “reasonable efforts" rule

adopted by both the majority and the

minority seems a fair standard by which

to judge the government's effrots in the

production of an informer. However, the

combination of the "reasonable efforts"

standards with the “clearly erroneous"

rule and the refusal of the majority to

look at the totality of the government's

conduct with respect to the informant

xxviii

makes the application of the "reasonable

efforts' rule a farce.

The Court states that the same rules

should apply whether the informer is an alien

Or a citizen, and if the rule is a search-

ing ad hoc inquiry of each specific set

of facts as to whether or not the government's

conduct has been reasonable, then counsel

would agree. However, the majority seems

to have treated this situation not as if

there was a difference in the rule, but

as if thee were no difference in the facts;

for example, between an informer living in

Mexico and an informer living in Los Angeles.

What if the informer lived in Vladivostok?

Certainly his use as an informer in this

case would be just as reasonable as the use

of Murrieta.

To narrow the inquiry to the efforts

made by the Government at the time it is

forced to make those efforts without taking

lxxiv

into consideration all of the government's

action and inaction with respect to the

informant is at best sophistry. The facts

are that the DEA hired Murrieta as an

informer a year and a half before Robles

was arrested. At the time he was hired,

he was a Mexican citizen and national,

living sixty-five (65) miles south of

the United States border in the town of

Magdalena, Sonora, Mexico, and he continued

to live there up to and including the date

of Robles' trial. At the time he was hired

by the Government of the United States, the

Government did not ask for or obtain his

address or telephone number, and that

factual situation continued through the

date of Robles' trial. At the time Murrieta

was hired, the Government knew that there

was no way that they could get hold of

him unless Murrieta initiated the contact.

During the period of time that Murrieta was

1xxv

employed up to the Robles trial, he was

used in sixteen (16) cases, ten (10) of

which originated in and were wholly con-

fined to Pima County, Arizona. The record

is clear that upon completion of a case, he

was paid in full and immediately returned

to his residence in Mexico.

Either the case agent dealing with

Murrieta and the agents who hired him were

terribly incompetent, or they deliberately

did not want any information that would

assist them or a defense attorney in loca-

ting Murrieta. Counsel does not believe

it proper to assume that the agents are all

incompetent; therefore if they did not

possess information which any reasonably

prudent police officer would have, it is

because they deliberately did not want to

have, it is because they deliberately did

not want to have the information; such is

the case here. The Government had deliber-

lxxvi

ately avoided obtaining information that

would assist in locating the Government

informer. The majority opinion completely —

ignores this conduct on the part of the

Government and allows the substitution of

the Government's smirking ignorance for

the defendant's rights under the Fifth

and Sixth Amendments of the United States

Constitution. The Government's conduct may

not have been active participation in the

absence of the witness; it is just that

they have done everything in their power to

avoid being able to produce the witness:

A rose by any other name. .. The Govern-

ment deliberately placed itself in a

position that they now complain of. Is

this Court going to allow them to say,

"We couldn't do anything else," when

the reason they could not do anything

else, if such be the case, is their own

deliberate conduct.

lxxvii

The majority states that there is 2

no evidence that a hold-out of payment to

these informers would have assured their

presence at the trial; it would, however, e

have been an inducement and it would have

indicated some effort on the part of the

Government to obtain the informers' *

presence.

The trial court indicated in the

trial transcript, page 28, footnote No. 2,

that "the defendants have a little obli-

gation themselves. They have known who

these witnesses were, and have known basic-

ally where they were. Counsel was con-

vinced up until that quote appeared in the

majority opinion, that the trial Court's

mention of it was specious. Defendants were

able to discover, on July 25, 1974, that

Murrieta lived in Magdalena, Mexico, and e

ran a little store at or near a certain

intersection. The terms of defendants' re-

lxxviii

lease, under bond, strangely enough, did

not allow them to journey into Mexico. '

As was pointed out at the interview of the

witness in July, both of the informers

spoke only Spanish; the defense attorneys

only English. The defense attorneys were

not acquainted with the informer Murrieta

and did not know what he looked like. When

the defense attorney attempted to obtain

more information concerning the whereabouts

of Murrieta, he was prevented from doing

so by the United States Attorney. (Inter-

view of Witness, p.59, ln. 17 to p. 60 ln.5.)

Neither the defendants nor their attorneys

have agents stationed in Mexico like the

DEA. To suggest, under the circumstances,

that there was any way that the defendant

could have obtained Murrieta's presence at

trial is just incredible.

If the trial Court's finding was

not clearly erroneous. The Government's

lxxix

efforts were not only not reasonable, they

were nonexistent, and they are exactly

the kind of efforts the Government planned

to make when they hired Murrieta a year and

a half beforehand.

CONCLUSION

Counsel respectfully request that

this Court grant the rehearing requested

herein since it is the sincere belief of

counsel that the majority opinion, as pre-

sently constituted, is mistaken and will open

the door for even more flagrant abuse of

the informer system by the Government.

RESPECTFULLY SUBMITTED this 3rd

day of August, 1976.

MICHAEL J. BORWN, P.C.

Attorney at Law

222 North Court Avenue

Tucson, Arizona 85701

(SIGNATURE)

Attorney for Appellant

1xxx

ADOPTION BY REFERENCE

The appellant, RUBEN MORALES

ROBLES, hereby adopts by reference, as

his own, as if fully set forth herein

all of the issues and arguments presented

by the appellant ROBERT DALE HART in his

Motion for Rehearing previously filed

herein.

CERTIFICATE OF SERVICE

I, Michael J. Brown, hereby certi-

fy that I mailed two copies of this Motion

for Rehearing and Suggestion for Rehearing

En Banc this 3rd day of August, 1976, to:

HON. WILLIAM C. SMITHERMAN

UNITED STATES ATTORNEY

POST OFFICE BOX 1951

and

LOUIS L. DECKTER

LAW OFFICES OF

JACK A. ETTINGER, P.C.

111 South Church Avenue

TUCSON, ARIZONA 85701

Dated: August 3, 1976.

(SIGNATURE)

Lxxxi

Appendix F

CAPTION OMITTED

PETITION FOR REHEARING

COMES NOW Appellant, ROBERT DALE

HART, by and through his attorneys, and

petitions this Court, pursuant to Rule 40

of the Federal Rules of Appellate Procedure,

for a rehearing of the decision of this Court

from its opinion of the above entitled and

captioned matter of July 22, 1976, for the

reasons as set forth in the Memorandum of

Points and Authorities attached hereto and

made a part hereof.

Respectfully submitted,

LAW OFFICES OF

JACK A. ETTINGER, P. C.

by (signature)

Louis L. Deckter

111 South Church Avenue

Tucson, Arizona 85701

lxxxii

MEMORANDUM OF POINTS AND AUTHORITIES

This court's en banc opinions of July

22, 1976, affirming Appellant Hart's con-

viction, turned on two issues: The extent

of the Government's duty to produce a Gov-

ernment informant whose presence has been

properly ordered by the trial court and the

standard of review this Court will apply in

reviewing the District Court's determination

of whether or not the Government has met

that burden. For the following reasons

Appellant Hart submits that this Court erred

in its ruling on said issues and, therefore,

respectfully requests that this Court grant

Appellant a rehearing in this matter.

THE GOVERNMENT'S DUTY TO

PRODUCE A GOVERNMENT IN-

FORMANT WHOSE PRESENCE HAS

BEEN ORDERED BY THE TRIAL

COURT.

It is well settled in this Circuit

lxxxiii

that upon an order to produce an informant,

the Government must make him available at

or before trial or bear the burden of showing

that although it expended "all reasonable

efforts," it was unable to locate and

produce said informant. United States v.

Leon, 487 F.2d 389 (9th Cir. 1973);

Velarde-Villarreal v. United States, 354 F.2d

9 (9th Cir. 1965). However, what constitutes

a "reasonable effort" in any given case can

only be doternined by the totality of cir-

cumstances as they exist in that case. For,

as Judge Hufstedler noted in dissent herein,

the development of reasonableness rules

grew out of a recognition that "in many areas

of the law... per se rules are often unwork-

able." (Hufstedler, J., dissenting, p.4).

Hart respectfully submits that the Government's

efforts herein did not rise to the standard

established in this Circuit as "reasonable"

Lxxxiv

and that this Court has erred in holding that

the Government has met its burden in this

case.

The decision rendered by this Court

concludes that merely because an informant

lives "south of the border” does not re-

quire that a different standard be applied.

As this Court put it, "An informer

can go underground in New York City, Chicago

or Los Angeles and be just as unavailable...

and the same rules should and do apply.”

(Opinion, p. 8). If, by this statement,

this Court means that the *reasonable effort"

test applies equally in both situations,

Appellant Hart would agree. However, the

two situations differ drastically in regard

to determining what efforts are deemed

“reasonable” in the Government's attempts to

locate and produce the informant. When an

informant is in the United States, whether

he is “underground” or not, the defense also

1xxxv

has the ability to independently discover

the whereabouts of the informant and to

subpoena him so as to compel his attendance.

Indeed, the major distinction between the

two cases is that where an American informant

is involved, defense counsel has the same

ability as that of the Government of com-

pelling the informant to attend a trial

through the subpoena power. Thus, the efforts

demanded of the Government could be justifiably

lesser than in the case where an alien in-

formant is used.

In the case at bar however, the

circumstances are so different that due

process and fundamental fairness require

that a stricter duty should be imposed

upon the Government to attempt to produce

Murrieta before the Government's efforts can

be deemed "reasonable." In this case, both

the defense and the Government knew exactly

where Murieta could be located as it was

lxxxvi

discovered early in the case that Murrieta

is the owner of a grocery store which he

personally operates at the intersection of

Lopez Matos Jalisco in Magdelena, Sonora,

Mexico. (Transcript, Interview of Witness,

Pp. 40-47). However, unlike the case where

an American informant is involved, Hart was

powerless to compel Murrieta'’s attendance as

he was beyond the subpoena power of the Court,

Indeed, in this case, the only influence

that could bs exerted to secure Murrieta's

attendance had to come from the Government -

in its role as Murrieta's employer. Yet,

as the record clearly indicates, the Govern-

ment failed to initiate any contact with

Murrieta at all. Instead, Lugo merely waited

until Murrieta, at his convenience, contacted

Lugo.

Hart respectfully submits that

in such circumstances, it was incumbent

upon the Government to exert more forceful

efforts to produce Murrieta before its duty

to exert "reasonable" efforts was satisfied.

lxxxvii

For example, it would have been very easy for

Lugo to go to Murrieta's grocery store and

personally remind Murrieta of his responsi-

bility to testify when called upon by the

Government. Such direct contact with one's

employer is certainly more persuasive than

a telephonic conversation initiated by the

employee. Furthermore, in any one of those

many telephone conversations, Lugo could

have informed Murrieta that his failure to

appear and testify would result in his ter-

mination of employment with the United States

Government. This course of action was

specifically approved by this Court in

cases such as this where there appears to be

an unwilling informant involved whose

testimony is crucial to the defense. See,

United States v. Leon, 487 F.2d 389, 392

(9th Cir. 1973). But, to the contrary, rather

than conditioning Murrieta's future employ-

ment on his availability as a witness in

lxxxviii

this case, the Government continued to

employ him in “further investigations" in

spite of his obvious intentions not to

appear, as ordered, in this case. (See,

Transcript, Motion To Continue, August 12,

1974, p.+22, lines 12-17). Finally, the

Government could have withheld a portion of

Murrieta’s “reward” in this case contingent

upon his completion of his role in this case,

i.e., testifying at trial if his testimony

became necessary. Instead, Murrieta was

fully compensated and permitted to return to

Mexico despite, or, perhaps, because of the

Government's knowledge of the materiality of

Murrieta to the defense in this case. Ob-

viously, full payment leaves little incentive

for Murrieta to cooperate further in the case.

Appellant Hart does not contend

that this Court must declare the Government

the "Guarantor" of the informant's presence

every time a defendant alleges entrapment.

It has consistently been Hart's position that

lxxxix

it is the unique facts of this case

which create in the Government the duty to

exert more forceful efforts to produce

Murrieta in order to assure Hart's funda-

mental right to a fair trial. To hold

otherwise is to emansculate the "reasonable

efforts" test to such an extent that it

will be unable to prevent the very evil it

was created to protect against, i. e.,

the risk of entrapment by over zealous and,

often times, inadequately trained Govern-

ment “agents” eager to earn their “reward"

in any particular case.

While this Court's opinion intimates

that the Government had no reason to suspect

Murrieta's availability before this case,

the record clearly establishes ample reason

for concern. It is true that Murrieta

testified in May, 1974, in a different

case, for the Government. However, it must

be remembered that Murrieta's appearance at

that trial is the only instance of record in

which Murrieta was called upon by the Govern-

ment. Every other instance of record in which

Murrieta was involved demonstrates that

Murrieta was given a free reign in his

eutbvities. Murrieta picked his own sub-

jects for investigation. It was Murrieta who

contacted Lugo; Lugo never initiated even

one telephone call to Murrieta. In fact, it

was not until this case was in progress that

Lugo even learned of any address at which

Murrieta could be contacted. Furthermore,

Murrieta's actions in this case clearly

establish the necessity for concern over

his availability. The record is replete

with broken promises by Murrieta that he

would appear. (See, e.g. T,T. pp. 39-40).

Yet, Lugo never intensified his efforts to

produce Murrieta but merely continued to

tell him that it was "important" that he

come to Tucson. (Id.) There can be no doubt

xci

that Murrieta's early conduct should have

caused Agent Lugo concern regarding his

Sincerity and reliability. Thus, the

Government should have initiated more

intense efforts on Lugo's part to secure

Murrieta's attendance. At the very least,

Lugo could have, and should nave, con-

ditioned Murrieta's future employment with

the D.E.A. upon his availability as a

witness, as this Court held was necessary

in United States v.Leon, 487 F.2d 389, 392

(9th Cir. 1973). Also, as pointed out

above, Lugo should have attempted to initiate

a contact with Murrieta at Murrieta's

grocery store in Magdalena, Sonora, Mexico,

to personally emphasize the importance of

Murrieta's attendance. Yet, Lugo did not

resort to either of these measures to

persuade Murrieta to attend the trial.

Clearly, the efforts employed by Lugo in

this case cannot be deemed "reasonable"

undercircumstances such as these, where the

xcii

Government chose to utilize Mexican

Nationals with full knowledge that upon

their certain return to Mexico, they would

be immune from the subpoena power of the

Court.

It is Hart's contention that he is

entitled to a rehearing in this matter

because this Court has erred in finding that

Agent Lugo, "exerted every reasonable effort"

to procure the attendance of Murrieta at

Hart's trial in light of the totality of

circumstances involved in this case. For

it must be remembered by this Court, that

Murrieta's testimony did not go merely to

a collateral issue, nor was it merely

cumulative or coroborative. Rather, Murrieta's

testimony was necessary for the very essence

of the defense as it was Murrieta alone who

could either substantiate or refute Hart's

claim of entrapment. Thus, the extreme

importance of Murrieta's testimony is another

xciii

factor weighing in favor of requiring the

Government to use more forceful efforts to

secure his attendance at trial than were

used here.

Hart fully concurs that the Govern-

ment is not the "guarantor" of an informant's

presence but requests that this Court hold

the Government to a standard of reasonable-

ness necessary to assure Hart a fair trial.

This Court must not leave the decision of

whether or not a defendant will receive a

fair trial to the unfettered discretion of

untrained, alien informants whose only

interest in the receipt of their “reward”

for making a successful case. By sus-

taining the Government's “efforts” in this

case, this Court has done just that.

Accordingly, Hart requests this Court to

reconsider its decision in this case.

xciv

THE APPROPRIATE STANDARD OF

REVIEW FOR THIS COURT TO

APPLY IN THIS CASE.

The majority decision in this case held

that the "clearly erroneous" rule of review

must be applied herein as the determination

of the reasonableness" of the Government's

efforts is a question of fact. In response

to this contention, Hart respectfully adopts

the opinion written by Judge Hufstedler as

it is clear that that opinion expresses the

correct rule regarding the applicability of

the "clearly erroneous" rule, The deter-

mination of the reasonableness of the efforts

employed by Agent Lugo is a conclusion based

on the application of a legal standard.

Hart respectfully submits that Fleischmann

Distilling Corp. v. Marer Brewing Co. 314 F.

2d 149 (9th Cir. 1963) is determinative of

this issue in its holding that the "clearly

erroneous" rule has no application when a

finding is not one which resolves disputed

facts, but rather, one which determines the

xCV

the legal effect of certain transactions or

events. 314, F.2d at 152 n.2. In the case

at bar the determination of reasonableness

resulted in a conclusion regarding a legal

standard taking said determination out of

the "clearly erroneous" rule. Therefore,

Hart submits that said rule does not pre-

clude this Court from reviewing the deter-

mination of reasonableness made by the trial

Court in this case.

Itt

CONCLUSION

For all the foregoing reasons,

Appellant Hart respectfully urges that he is

entitled to a rehearing in this matter and

requests this Court to order said rehearing.

RESPECTFULLY SUBMITTED this 3rd day

of August, 1976.

LAW OFFICES OF

JACK A. ETTINGER,

by (signature)

Louis L. Deckter

111 South Church

Tucson, Arizona

85701

Attorneys for

Appellant Hart

xcvi

CERTIFICATE OF SERVICE

I, Louis L. Deckter, hereby certify

that I mailed copies of this Petition For

Rehearing of the appellant this 3rd day of

August, 1976, to:

William C. Smitherman

United States Attorney

James E. Mueller

Assistant United States Attorney

Post Office Box 1951

Tucson, Arizona 85701 (2 copies)

Robert Dale Hart, 40302-156

4980 South 17th Avenue

Tucson, Arizona (1 copy)

(signature)

Louis L. Deckter

xcvii

Appendix G

CAPTION OMITTED

ORDER

Having been considered:

1. The Petition For Rehearing in the

case of United States v. Robert Dale Hart,

2. The Motion For Rehearing aad

Suggestion For Rehearing En Banc in the case

of United States v. Ruben Morales Robles,

No. 74-3270, is denied.

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