Petitioner was convicted in a Federal District Court for
violating 21 U.S.C. §174, by knowingly possessing and transporting
heroin imported unlawfully. In the face of repeated demands by
petitioner for disclosure, the trial court sustained the
Government's refusal to disclose the identity of an undercover
informer who had taken a material part in bringing about
petitioner's possession of the drugs, had been present with
petitioner at the occurrence of the alleged crime, and might have
been a material witness as to whether petitioner knowingly
transported the drugs as charged.
In the circumstances of this case, failure of the
court to require disclosure of the identity of the informer was
reversible error. Pp. 353 U. S.
(a) Where disclosure of an informer's identity, or of the
contents of his communication, is relevant and helpful to the
defense of an accused, or is essential to a fair trial, the
Government's privilege to withhold disclosure of the informer's
identity must give way. Pp. 353 U. S.
(b) However, no fixed rule is justifiable. The public interest
in protecting the flow of information to the Government must be
balanced against the individual's right to prepare his defense.
Whether nondisclosure is erroneous depends on the particular
circumstances of each case, taking into consideration the crime
charged, the possible defenses, the possible significance of the
informer's testimony, and other relevant factors. P. 353 U. S.
(c) In this case, the informer was not expressly mentioned in
the relevant charge of the indictment; but the charge, viewed in
connection with the evidence introduced at his trial, is so closely
related to the informer as to make his identity and testimony
highly material. Pp. 353 U. S.
(d) The provision of the statute authorizing a conviction when
the Government has proved that the accused possessed narcotics --
unless he explains or justifies such possession -- emphasizes
petitioner's vital need for access to any material witness. P.
353 U. S.
Page 353 U. S. 54
(e) The circumstances of this case demonstrate that the
informer's possible testimony was highly relevant, and might have
been helpful to the defense. Pp. 353 U. S.
(f) On the record in this case, it cannot be assumed that the
informer was known to petitioner and available to him as a witness,
nor that the informer had died before the trial. P. 353 U. S. 60
(g) The trial court erred also in denying, prior to the trial,
petitioner's motion for a bill of particulars, insofar as it
requested the informer's identity and address, particularly because
Count 1 of the indictment charged an unlawful sale of heroin to the
informer. P. 353 U. S. 65
229 F.2d 812, reversed and remanded.
MR. JUSTICE BURTON delivered the opinion of the Court.
This case concerns a conviction for violation of the Narcotic
Drugs Import and Export Act, as amended. [Footnote 1
Page 353 U. S. 55
The principal issue is whether the United States District Court
committed reversible error when it allowed the Government to refuse
to disclose the identity of an undercover employee who had taken a
material part in bringing about the possession of certain drugs by
the accused, had been present with the accused at the occurrence of
the alleged crime, and might be a material witness as to whether
the accused knowingly transported the drugs as charged. For the
reasons hereafter stated, we hold that, under the circumstances
here present, this was reversible error.
In 1955, in the Northern District of Illinois, petitioner,
Albert Roviaro, was indicted on two counts by a federal grand jury.
The first count charged that, on August 12, 1954, at Chicago,
Illinois, he sold heroin to one "John Doe" in violation of 26
U.S.C. § 2554(a). The second charged that, on the same date and in
the same city, he
"did then and there fraudulently and knowingly receive, conceal,
buy and facilitate the transportation and concealment after
importation of . . . heroin, knowing the same to be imported into
the United States contrary to law; in violation of Section 174,
Title 21, United States Code."
Before trial, petitioner moved for a bill of particulars
requesting, among other things, the name, address and occupation of
"John Doe." The Government objected on the ground that John Doe was
an informer and that his identity was privileged. The motion was
Petitioner, who was represented by counsel, waived a jury and
was tried by the District Court. During the trial, John Doe's part
in the charged transaction was described by government witnesses,
and counsel for petitioner, in cross-examining them, sought
repeatedly to learn John Doe's identity. The court declined to
permit this cross-examination, and John Doe was not produced,
identified, or otherwise made available. Petitioner was
Page 353 U. S. 56
found guilty on both counts, and was sentenced to two years'
imprisonment and a fine of $5 on each count, the sentences to run
concurrently. [Footnote 2
Court of Appeals sustained the conviction, holding that the
concurrent sentence was supported by the conviction on Count 2, and
that the trial court had not abused its discretion in denying
petitioner's requests for disclosure of Doe's identity. 229 F.2d
812. We granted certiorari, 351 U.S. 936, in order to pass upon the
propriety of the nondisclosure of the informer's identity and to
consider an alleged conflict with Portomene v. United
221 F.2d 582; United States v. Conforti,
F.2d 365; and Sorrentino v. United States,
At the trial, the Government relied on the testimony of two
federal narcotics agents, Durham and Fields, and two Chicago police
officers, Bryson and Sims, each of whom knew petitioner by sight.
On the night of August 12, 1954, these four officers met at 75th
Street and Prairie Avenue in Chicago with an informer described
only as John Doe. [Footnote 3
Doe and his Cadillac car were searched, and no narcotics were
found. Bryson secreted himself in the trunk of Doe's Cadillac,
taking with him a device with which to raise the trunk lid from the
inside. Doe then drove the Cadillac to 70th Place and St. Lawrence
Avenue, followed by Durham in one government car and Field and Sims
in another. After an hour's wait, at about 11 o'clock, petitioner
arrived in a Pontiac, accompanied by an unidentified
Page 353 U. S. 57
man. Petitioner immediately entered Doe's Cadillac, taking a
front seat beside Doe. They then proceeded by a circuitous route to
74th Street near Champlain Avenue. Both government cars trailed the
Cadillac, but only the one driven by Durham managed to follow it to
74th Street. When the Cadillac came to a stop on 74th Street,
Durham stepped out of his car onto the sidewalk and saw petitioner
alight from the Cadillac about 100 feet away. Durham saw petitioner
walk a few feet to a nearby tree, pick up a small package, return
to the open right front door of the Cadillac, make a motion as if
depositing the package in the car, and then wave to Doe and walk
way. Durham went immediately to the Cadillac and recovered a
package from the floor. He signaled to Bryson to come out of the
trunk, and then walked down the street in time to see petitioner
re-enter the Pontiac, parked nearby, and ride away.
Meanwhile, Bryson, concealed in the trunk of the Cadillac, had
heard a conversation between John Doe and petitioner after the
latter had entered the car. He heard petitioner greet John Doe and
direct him where to drive. At one point, petitioner admonished him
to pull over to the curb, cut the motor, and turn out the lights so
as to lose a "tail." He then told him to continue "further down."
Petitioner asked about money Doe owed him. He advised Doe that he
had brought him "three pieces this time." When Bryson heard Doe
being ordered to stop the car, he raised the lid of the trunk
slightly. After the car stopped, he saw petitioner walk to a tree,
pick up a package, and return toward the car. He heard petitioner
say, "Here it is," and "I'll call you in a couple of days." Shortly
thereafter, he heard Durham's signal to come out and emerged from
the trunk to find Durham holding a small package found to contain
three glassine envelopes containing a white powder.
Page 353 U. S. 58
A field test of the powder having indicated that it contained an
opium derivative, the officers, at about 12:30 a.m., arrested
petitioner at his home and took him, along with Doe, to Chicago
police headquarters. There, petitioner was confronted with Doe, who
denied that he knew or had ever seen petitioner. [Footnote 4
] Subsequent chemical analysis
revealed that the powder contained heroin.
Petitioner contends that the trial court erred in upholding the
right of the Government to withhold the identity of John Doe. He
argues that Doe was an active participant in the illegal activity
charged, and that therefore the Government could not withhold his
identity, his whereabouts, and whether he was alive or dead at the
time of trial. [Footnote 5
Government does not defend the nondisclosure of Doe's identity with
respect to Count 1, which charged a sale of heroin to John Doe, but
it attempts to sustain the judgment on the basis of the
Page 353 U. S. 59
on Count 2, charging illegal transportation of narcotics.
] It argues that the
conviction on Count 2 may properly be upheld, since the identity of
the informer, in the circumstances of this case, had no real
bearing on that charge, and is therefore privileged.
What is usually referred to as the informer's privilege is in
reality the Government's privilege to withhold from disclosure the
identity of persons who furnish information of violations of law to
officers charged with enforcement of that law. Scher v. United
States, 305 U. S. 251
305 U. S. 254
In re Quarles and Butler, 158 U.
; Vogel v. Gruaz, 110 U.
, 110 U. S. 316
The purpose of the privilege is the furtherance and protection of
the public interest in effective law enforcement. The privilege
recognizes the obligation of citizens to communicate their
knowledge of the commission of crimes to law enforcement officials
and, by preserving their anonymity, encourages them to perform that
Page 353 U. S. 60
The scope of the privilege is limited by its underlying purpose.
Thus, where the disclosure of the contents of a communication will
not tend to reveal the identity of an informer, the contents are
not privileged. [Footnote 7
Likewise, once the identity of the informer has been disclosed to
those who would have cause to resent the communication, the
privilege is no longer applicable. [Footnote 8
A further limitation on the applicability of the privilege
arises from the fundamental requirements of fairness. Where the
disclosure of an informer's identity, or of the contents of his
communication, is relevant and helpful
Page 353 U. S. 61
to the defense of an accused, or is essential to a fair
determination of a cause, the privilege must give way. [Footnote 9
] In these situations, the
trial court may require disclosure, and, if the Government
withholds the information, dismiss the action. [Footnote 10
] Most of the federal cases
involving this limitation on the scope of the informer's privilege
have arisen where the legality of a search without a warrant is in
issue and the communications of an informer are claimed to
establish probable cause. In these cases, the Government has been
required to disclose the identity of the informant unless there was
sufficient evidence apart from his confidential communication.
Three recent cases in the Courts of Appeals have involved the
identical problem raised here -- the Government's right to withhold
the identity of an informer who helped to set up the commission of
the crime and who was present at its occurrence. Portomene v.
221 F.2d 582; United States v.
200 F.2d 365; Sorrentino v. United States,
163 F.2d 627. In each case, it was stated that the identity of such
an informer must be disclosed whenever the informer's testimony
Page 353 U. S. 62
may be relevant and helpful to the accused's defense. [Footnote 12
We believe that no fixed rule with respect to disclosure is
justifiable. The problem is one that calls for balancing the public
interest in protecting the flow of information against the
individual's right to prepare his defense. Whether a proper balance
renders nondisclosure erroneous must depend on the particular
circumstances of each case, taking into consideration the crime
charged, the possible defenses, the possible significance of the
informer's testimony, and other relevant factors.
The materiality of John Doe's possible testimony must be
determined by reference to the offense charged in Count 2 and the
evidence relating to that count. The
Page 353 U. S. 63
charge is in the language of the statute. It does not charge
mere possession; it charges that petitioner did
"fraudulently and knowingly receive, conceal, buy and facilitate
the transportation and concealment after importation of . . .
heroin, knowing the same to be imported into the United States
contrary to law. . . ."
While John Doe is not expressly mentioned, this charge, when
viewed in connection with the evidence introduced at the trial, is
so closely related to John Doe as to make his identity and
testimony highly material.
It is true that the last sentence of subdivision (c) of § 2
authorizes a conviction when the Government has proved that the
accused possessed narcotics, unless the accused explains or
justifies such possession. [Footnote 13
] But this statutory presumption does not
reduce the offense to one of mere possession, or shift the burden
of proof; it merely places on the accused, at a certain point, the
burden of going forward with his defense. [Footnote 14
] The fact that petitioner here was
faced with the burden of explaining or justifying his alleged
possession of the heroin emphasizes his vital need for access to
any material witness. Otherwise, the burden of going forward might
become unduly heavy.
The circumstances of this case demonstrate that John Doe's
possible testimony was highly relevant, and might
Page 353 U. S. 64
have been helpful to the defense. So far as petitioner knew, he
and John Doe were alone and unobserved during the crucial
occurrence for which he was indicted. Unless petitioner waived his
constitutional right not to take the stand in his own defense, John
Doe was his one material witness. Petitioner's opportunity to
cross-examine Police Officer Bryson and Federal Narcotics Agent
Durham was hardly a substitute for an opportunity to examine the
man who had been nearest to him and took part in the transaction.
Doe had helped to set up the criminal occurrence, and had played a
prominent part in it. His testimony might have disclosed an
entrapment. He might have thrown doubt upon petitioner's identity,
or on the identity of the package. He was the only witness who
might have testified to petitioner's possible lack of knowledge of
the contents of the package that he "transported" from the tree to
John Doe's car. The desirability of calling John Doe as a witness,
or at least interviewing him in preparation for trial, was a matter
for the accused, rather than the Government, to decide.
Finally, the Government's use against petitioner of his
conversation with John Doe while riding in Doe's car particularly
emphasizes the unfairness of the nondisclosure in this case. The
only person, other than petitioner himself, who could controvert,
explain or amplify Bryson's report of this important conversation
was John Doe. Contradiction or amplification might have borne upon
petitioner's knowledge of the contents of the package, or might
have tended to show an entrapment.
This is a case where the Government's informer was the sole
participant, other than the accused, in the transaction charged.
The informer was the only witness in a position to amplify or
contradict the testimony of government witnesses. Moreover, a
government witness testified that Doe denied knowing petitioner or
Page 353 U. S. 65
seen him before. We conclude that, under these circumstances,
the trial court committed prejudicial error in permitting the
Government to withhold the identity of its undercover employee in
the face of repeated demands by the accused for his disclosure.
Petitioner also presents a claim of error arising out of a
controversy over the correctness of an entry, made on the envelope
containing the heroin, to the effect that the heroin had been found
by Bryson. The undisputed testimony of the officers was that the
heroin had been found by Durham and handed by him to Bryson who, in
turn, handed it to Fields, who made the erroneous entry. On the
basis of this discrepancy, petitioner sought to obtain Durham's
written report to the Federal Narcotics Bureau concerning the case.
Although this discrepancy dealt with the relatively minor matter of
who had first found the package, it also reflected upon the
credibility of Durham and Fields, two of the Government's principal
witnesses. However, in view of the decision we have reached on
other grounds, we deem it unnecessary to determine whether the
denial of this request, even if erroneous, was prejudicial to
Page 353 U. S. 66
The judgment of the Court of Appeals is reversed, and the case
is remanded to the District Court for proceedings not inconsistent
with this opinion.
Reversed and remanded.
MR. JUSTICE BLACK and MR. JUSTICE WHITTAKER took no part in the
consideration or decision of this case.
"(c) Whoever fraudulently or knowingly imports or brings any
narcotic drug into the United States or any territory under its
control or jurisdiction, contrary to law, or receives, conceals,
buys, sells, or in any manner facilitates the transportation,
concealment, or sale of any such narcotic drug after being imported
or brought in, knowing the same to have been imported contrary to
law, or conspires to commit any of such acts in violation of the
laws of the United States, shall be fined not more than $2,000 and
imprisoned not less than two or more than five years. . . ."
"Whenever on trial for a violation of this subdivision [§ 2(c)]
the defendant is shown to have or to have had possession of the
narcotic drug, such possession shall be deemed sufficient evidence
to authorize conviction unless the defendant explains the
possession to the satisfaction of the jury."
65 Stat. 767, 768, 21 U.S.C. § 174.
The judgment of conviction provided for a $5 fine on "each"
count, to "run concurrently." The Government stated, during the
argument before this Court, that this judgment has been construed
administratively as imposing only one $5 fine. We therefore assume,
without so deciding, that the judgment imposed a fully concurrent
Durham, Bryson and Sims, among them, testified that Doe was an
"informer" and a "special employee" who had been known to the
federal agents for several years.
Police Officer Bryson testified as follows:
"Q. Well, did he [John Doe] say anything with reference to an
acquaintanceship or any prior association with this man
[petitioner] or any transaction with this man?"
"* * * *"
"A. Well, he said he didn't know the Defendant here. He said he
had never seen him before."
The following colloquy occurred between Chester E. Emanuelson,
the government counsel, and Maurice J. Walsh, petitioner's
"Mr. Emanuelson: . . ."
"* * * *"
"The reason we do not want to reveal his [Doe's] name is that
there are other matters that are pending. I have been told -- I
know of one myself -- and the cases hold that we do not have to
reveal the former's name. Now, if there is some reason --"
"Mr. Walsh: Well, is there any activity of the informer which
will be curtailed by reason of the disclosure of his name? Would
you answer that?"
"Mr. Emanuelson: Any activities?"
"Mr. Walsh: Yes."
"Mr. Emanuelson: From this point forward, no."
"Mr. Walsh: Is there any occasion upon which he will be called
"Mr. Emanuelson: No."
In a later colloquy, Mr. Emanuelson stated:
"[A]s I understand it, the reason his [Doe's] name has not been
disclosed is because he is acting as a Government employee in other
cases, and it would help other persons in other matters that are
Since the concurrent sentence did not exceed that which lawfully
might be imposed under a single count, the judgment may be affirmed
if the conviction on either count is valid. Pinkerton v. United
States, 328 U. S. 640
328 U. S.
-642, n. 1; Hirabayashi v. United States,
320 U. S. 81
320 U. S. 85
Abrams v. United States, 250 U. S. 616
250 U. S. 619
Claassen v. United States, 142 U.
, 142 U. S.
Foltz v. Moore McCormack Lines,
189 F.2d 537, 539-540;
VIII Wigmore, Evidence (3d ed. 1940), § 2374(1); A.L.I., Model Code
of Evidence (1942), Rule 230. But cf. In re Quarles and
Butler, 158 U. S. 532
Vogel v. Gruaz, 110 U. S. 311
110 U. S.
Sorrentino v. United States,
163 F.2d 627, 629;
Pihl v. Morris,
319 Mass. 577, 578-580, 66 N.E.2d 804,
805-806; Commonwealth v. Congdon,
265 Mass. 166, 174-175,
165 N.E. 467, 470; Regina v. Candy
, cited 15 M. & W.
175; VIII Wigmore, Evidence (3d ed. 1940), § 2374(2).
The record contains several intimations that the identity of
John Doe was known to petitioner, and that John Doe died prior to
the trial. In either situation, whatever privilege the Government
might have had would have ceased to exist, since the purpose of the
privilege is to maintain the Government's channels of communication
by shielding the identity of an informer from those who would have
cause to resent his conduct. The Government suggests that if
petitioner knew John Doe's identity, the court's failure to require
disclosure would not be prejudicial even if erroneous. See
Sorrentino v. United States,
163 F.2d 627. However, any
indications that petitioner, at the time of the trial, was aware of
John Doe's identity are contradicted by the testimony of Officer
Bryson that John Doe at police headquarters denied knowing, or ever
having seen, petitioner. The trial court made no factual finding
that petitioner knew Doe's identity. On this record, we cannot
assume that John Doe was known to petitioner, and, if alive,
available to him as a witness. Nor can we conclude that John Doe
died before the trial.
See, e.g., Scher v. United States, 305 U.
; Wilson v. United States,
59 F.2d 390;
Centoamore v. State,
105 Neb. 452, 181 N.W. 182. Early
decisions established that the scope of the privilege was in the
discretion of the trial judge. Disclosure was compelled when he
found it "material to the ends of justice. . . ." Regina v.
3 F. & F. 693, 694 (1863). See also Marks
L.R. 25 Q.B.D. 494, 498 (1890). In the
at 305 U. S. 254
this Court said that
"public policy forbids disclosure of an informer's identity
unless essential to the defense, as, for example, where this turns
upon an officer's good faith."
See United States v. Coplon,
185 F.2d 629, 638;
United States v. Andolschek,
142 F.2d 503, 506.
E.g., Scher v. United States, supra; United States v. Li Fat
152 F.2d 650; Wilson v. United States, supra;
United States v. Keown, 19 F. Supp.
In the Portomene case, supra,
the accused was charged
with two sales of narcotics to an informer. The accused took the
stand, denied selling narcotics, and testified that the person he
believed to be the informer had a grudge against him. The Fifth
Circuit held that disclosure was essential to the defense.
In the Conforti case, supra,
the accused was charged
with possession of counterfeit notes. Agents overheard the informer
make arrangements with the accused, saw the informer meet the
accused and a package transferred, and then received from the
informer a package containing counterfeit money. The Seventh
Circuit stated that the accused would have been entitled to
disclosure of the informer's identity if a proper demand had been
made at the trial.
In the Sorrentino
the accused was
charged with both sale and possession of narcotics. Government
agents saw the accused go into a house with the informer after
arrangements for a sale had been overheard, and the informer later
turned over narcotics to the agents. The Ninth Circuit stated that
the accused was entitled to disclosure under these circumstances,
but the conviction was affirmed on the ground that the record
demonstrated that the accused knew the identity of the
See also Crosby v. State,
90 Ga.App. 63, 82 S.E.2d
where the material part of the statutory provision
is quoted in full.
Casey v. United States, 276 U.
, 276 U. S. 418
United States v. Chiarelli,
192 F.2d 528, 531;
Stoppelli v. United States,
183 F.2d 391; Landsborough
v. United States,
168 F.2d 486.
Petitioner contends that the Government in all cases must make a
further affirmative showing that the accused knew that its failure
to do so here entitles him that its failure to do so here entitles
him to an acquittal. That contention, however, has been decided
against petitioner in the cases cited above.
Thus far, we have dealt largely with the trial court's refusal,
at the trial, to require disclosure of the informer's identity. In
view of the Government's exclusive reliance here upon Count 2, we
have considered this question only with respect to that count.
However, we think that the court erred also in denying, prior to
the trial, petitioner's motion for a bill of particulars, insofar
as it requested John Doe's identity and address. Since Count 1 was
then before the court and expressly charged petitioner with a sale
of heroin to John Doe, it was evident from the face of the
indictment that Doe was a participant in and a material witness to
that sale. Accordingly, when his name and address were thus
requested, the Government should have been required to supply that
information or suffer dismissal of that count.
MR. JUSTICE CLARK, dissenting.
It is with regret that I dissent from the opinion of the Court,
not because I am alone, but for the reason that I have been unable
to convince the majority of the unsoundness of its conclusion on
the facts here and the destructive effect which that conclusion
will have on the enforcement of the narcotic laws. The short of it
is that the conviction of a self-confessed dope peddler is reversed
because the Government refused to furnish the name of its informant
whose identity the undisputed evidence indicated was well known to
the peddler. Yet the Court reverses on the ground of "unfairness"
because of the Government's failure to perform this fruitless
gesture. In my view, this does violence to the common understanding
of what is fair and just.
First, it is well to remember that the illegal traffic in
narcotic drugs poses a most serious social problem. One need only
read the newspapers to gauge its enormity. No crime leads more
directly to the commission of other offenses. Moreover, it is a
most difficult crime to detect and prove. Because drugs come in
small pills or powder and are readily packaged in capsules or
glassine containers, they may be easily concealed. They can be
carried on the person or even in the body crevasses where detection
is almost impossible. Enforcement is, therefore, most difficult
without the use of "stool pigeons" or informants.
Page 353 U. S. 67
Their use has long had the approval of the courts. To give them
protection, governments have always followed a policy of
nondisclosure of their identities. Experience teaches that once
this policy is relaxed -- even though the informant be dead -- its
effectiveness is destroyed. Once an informant is known, the drug
traffickers are quick to retaliate. Dead men tell no tales. The old
penalty of tongue removal, once visited upon the informer Larunda,
has been found obsolete.
Of course where enforcement of a nondisclosure policy deprives
an accused of a fair trial, it must either be relaxed or the
prosecution must be foregone. The Government is fully aware of this
dilemma, and solves it every day by foregoing prosecutions in many
cases where evidence essential to the defense would require
disclosure. But this is not such a case.
In note 8 of the majority
the Court makes much of testimony of a
police officer that the informant, while at the police station,
"denied knowing, or ever having seen, petitioner." I submit that
this testimony is taken out of its proper setting. The informant
was in custody when petitioner was arrested, and the two were taken
to the police station, where each was kept in custody overnight.
There, while in custody, they were interrogated together about the
occurrences leading up to the arrests. The federal officer present
at the time was questioned at the trial in regard to informant's
answers at the station:
"Q. As a matter of fact, [the informant] said he did not have a
transaction with him, didn't he, in Roviaro's presence?"
"A. Do you want the entire conversation?"
"Q. Isn't what I asked you a fact?"
"A. No, sir. He didn't deny it. "
Page 353 U. S. 68
"Q. Didn't [the informant] say he didn't even know him?"
"A. Yes, sir; at first he did. [Footnote 2/1
In proper context, this merely shows that the informant was
carrying out a pretense that he too was arrested, was involved, and
was not "squealing." In fact, officer Bryson attempted in his
testimony to explain the "purpose" of the informant in so
answering, but was prevented by petitioner's counsel.
Moreover, the uncontradicted evidence is that the petitioner
knew the informant, and had associated with him for some time. Two
officers testified that they had seen petitioner on June 22, 1954,
enter the informant's car on Michigan Avenue in Chicago. Another
saw informant and petitioner enter the latter's home together on
June 28, only six weeks prior to the events in question here.
Further testimony shows that the informant was indebted to the
petitioner, that the petitioner had telephoned several times to
informant's home and "at the place," that petitioner was going to
call again in a couple of days after the date of his arrest, and
that he entered informant's car on the night of the arrest and
drove around with him for several miles. The Court asserts that the
conversation between the informant and petitioner while on this
ride "emphasizes the unfairness of the nondisclosure in this case."
But if we limit the officer's testimony to the statements of
petitioner alone, the testimony would prove the intimacy of the
acquaintance between petitioner and the informant. It would show
that petitioner directed the informant to the cache and admonished
him to turn out the car lights because of a "tail"; that petitioner
Page 353 U. S. 69
how to reach informant by telephone and had tried to phone him;
that he had brought him "three pieces this time," indicating prior
sales; that informant was indebted to him; that, when they
approached the cache, he directed the informant to stop the car;
and that finally, when he returned with the narcotics, petitioner
said "Here it is; I'll call you in a couple of days." All of this
testimony was admissable against petitioner, whether the informant
was available or not, or whether the was dead or alive. It proves
beyond question that the two were closely acquainted. For the Court
to conclude in the face of such a record that petitioner did not
know the informant is, to me, fantastic.
But this is not all. The petitioner has not mentioned a single
substantial ground essential to his defense which would make it
necessary for the Government to name the informer. The Court
mentions that there might have been entrapment. Petitioner not only
failed to claim entrapment, but his counsel appears to have
rejected any suggestion of it in open court. I submit the Court
should not raise it for him here. It should be noted that
petitioner's counsel stated in open court that petitioner knew the
informant, and believed he was dead. [Footnote 2/2
] Were there
Page 353 U. S. 70
necessity to establish informant's identity or, if dead, his
death, petitioner could easily have done so. [Footnote 2/3
In truth, it appears that petitioner hoped that the Government
would not furnish the name for, if the informant was dead, as he
believed, petitioner's ground was cut from under him. If the
informant was living, he knew that, even though his testimony was
favorable, it would not be sufficient to overcome the presumption
of the statute. In fact, a casual reading of the record paints a
picture of one vainly engaging in trial tactics, rather than
searching for real defenses -- shadowboxing with the prosecution in
a baseless attempt to get a name that he already had, but in
reality hoping to get a reversible error that was nowhere else in
sight. We should not encourage such tactics.
In light of these facts, the rule announced by the Court in
note 8 of the opinion should be
that the trial "court's failure to
require disclosure would not be prejudicial even if erroneous.
See Sorrentino v. United States,
163 F.2d 627."
The position of the Court is that, since the trial judge made no
finding that petitioner knew the informant, the Government cannot
successfully assert harmless error. It is true that the Court made
no finding other than that of guilt. But this general finding is
entitled to the support of every reasonable presumption. It would
be reasonable to assume that the trial judge declined to order the
disclosure because petitioner's counsel had said in open court that
he knew the identity of the informant. Furthermore, petitioner has
made no showing of how he
Page 353 U. S. 71
was harmed by the nondisclosure -- indeed he introduced no
evidence of anything.
I come now to the necessary proof required for a finding of
guilt under Count 2. All that is necessary here is proof of
possession of unstamped narcotics, such as heroin. The direct,
uncontroverted evidence of possession, as well as transportation,
is in the record. Two officers, one a local policeman and the other
a regular federal narcotics agent, saw petitioner when he had in
his hand a package containing heroin. The package was unstamped. A
third officer saw petitioner leave the scene of his crime, get into
his car, and ride away. The identification by each of the three is
positive, and stands uncontradicted. Under the Narcotic Drugs Act,
65 Stat. 767, 21 U.S.C. § 174, this alone is prima facie
evidence of guilt. Petitioner did not rebut it. In this connection,
it is well to point out petitioner's statement soon after his
arrest. The officers asked him: "Are you going to take this [rap]
by yourself, or are you going to name your connection?" Petitioner
replied that they were wasting their time --
"There's no use asking me about anybody else. . . . I don't want
to get anybody else in trouble. You got me. I've stood up twice
before, and I can stand up again.
Besides that, you've got to
convict me, anyhow."
(Emphasis added.) In view of this, I submit that there is no
question of guilt involved here.
Feeling as I do that the opinion of the Court seriously
jeopardizes the privilege of the Government in cases involving
informers, that their use in narcotic cases is an absolute
necessity in the proper administration of the narcotic laws, and
that the disclosure required here today is not only unessential to
the petitioner's defense, but, on the other hand, undermines a
long-standing policy necessary to the successful enforcement of the
narcotic laws, I respectfully dissent.
On petitioner's objection this testimony was subsequently
stricken. However, police officer Bryson, during cross-examination,
provided substantially this same testimony, and the inadvertence of
the Government in failing to object permitted it to stand.
The record discloses the following colloquy between petitioner's
counsel, Mr. Walsh, and the court:
"Mr. Walsh: Your Honor, this is the point, actually: he has
testified that John Doe [the informant] was present at 11th and
State Street with the Defendant. We know that person; we know that
person. That person is dead, as I understand it."
"* * * *"
"By Mr. Walsh: [cross-examination of agent Durham]."
"Q. I will ask him if the person as a matter of fact was not
"* * * *"
"Q. Isn't the informer's name, or the person you contend is an
informer, who has been mentioned by the prosecutor as an informer
-- isn't his name Tebbil Holmes?"
A death certificate, State File No. 1665, Dist. No. 16.10, on
file at the Bureau of Vital Statistics, Cook County Clerk's Office,
130 N. Wells St., Chicago, Illinois, indicates that a Tevell
Holmes, Sr., died in Chicago on January 17, 1955.