Roviaro v. United States/Dissent Clark

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. Their use has long had the approval of the courts. To give them protection governments have always followed a policy of nondisclosure of teir 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 non-disclosure 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 opinion, supra, 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.

'Q. Didn't (the informant) say he didn't even know him? A. Yes, sir; at first he did.'

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 knew 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 admissiable 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. Were there necessity to establish informant's identity or, if dead, his death, petitioner could easily have done so.

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 piecture 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 applied, i.e., that the trial 'court's failure to require disclosure would not be prejudicial even if erroneous. See Sorrentino v. United States, 9 Cir., 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 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 pckage 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, 21 U.S.C.A. § 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.