United States v. Moses Russ

362 F.2d 843, 1966 U.S. App. LEXIS 5568
CourtCourt of Appeals for the Second Circuit
DecidedJuly 7, 1966
Docket422, Docket 29557
StatusPublished
Cited by43 cases

This text of 362 F.2d 843 (United States v. Moses Russ) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Moses Russ, 362 F.2d 843, 1966 U.S. App. LEXIS 5568 (2d Cir. 1966).

Opinions

KAUFMAN, Circuit Judge:

Raising a single but vexing issue concerning the government’s obligation to disclose the identity of its informants, Moses Russ appeals from a one-count conviction for selling narcotics in violation of 21 U.S.C. §§ 173, 174. Judge Tyler, who presided at Russ’ non-jury trial, imposed the mandatory minimum sentence of five years’ imprisonment. We affirm.

I.

At trial, Russ neither took the stand nor presented witnesses in his behalf; instead, his defense consisted of an attempt to undermine the government’s case by intensely — albeit unproductively —cross-examining its two witnesses, Narcotics Agents Paschal and Miller. From their testimony, Judge Tyler was warranted in finding that, shortly after midnight on August 29, 1964, Agent Paschal, acting in an undercover capacity, and an informant1 went to the Most Bar on 118th Street and Lenox Avenue in Manhattan and inquired as to the whereabouts of "Pop Jones.” "Pop,” they were told, was on an errand and would return shortly. Within a few minutes, “Pop,” whom the agents later identified as Russ, approached and the not unfamiliar Damon Runyon vernacular conver[844]*844sation ensued. The informant introduced Paschal as a friend from New Jersey who wanted to “cop some stuff.” Paschal indicated that he wished to purchase “half a piece” of “some good stuff” to which Russ responded that he would have to obtain it from his “stash” and that the cost would be $150. During this conversation, the informant wandered a few feet away to a street vendor and purchased some “potato pies” which he ingested while the negotiations were in progress.

When Russ departed for his “stash,” Paschal and the informant decided to wait in the bar for his return; after approximately 15 to 20 minutes, Paschal observed Russ motioning to join him outside. Leaving the informant in the bar, Paschal walked to the street corner with Russ where they resumed their conversation. Russ inquired if Paschal had the $150 “on the head” (correctly counted). Paschal replied affirmatively and handed Russ the money in exchange for a glassine envelope containing white powder which a laboratory test later established to be approximately 8 grams of heroin. Agent Miller who had observed the transaction from a car parked one block away corroborated certain aspects of Paschal’s testimony.

II.

During the trial, Russ’ counsel inquired as to the identity of the government’s “special employee” and also requested his production as a witness. Judge Tyler declined to require the government either to reveal the informant’s name or to produce him at trial. The judge, noting the “vexing” nature of the issue, based his ruling on the very limited role which the informer had played as a mere introducer and nothing more.

Since it is well established that the government is not the guarantor of its informant’s presence at trial, United States v. Holiday, 319 F.2d 775 (2d Cir. 1963); United States v. Cimino, 321 F.2d 509 (2d Cir. 1963), cert. denied sub nom. D’Ercole v. United States, 375 U.S. 967, 84 S.Ct. 486, 11 L.Ed.2d 416 (1964); Cimino v. United States, 375 U.S. 974, 84 S.Ct. 491, 11 L.Ed.2d 418 (1964); United States v. D’Angiolillo, 340 F.2d 453 (2d Cir.), cert. denied, 380 U.S. 955, 85 S.Ct. 1090, 13 L.Ed.2d 972 (1965); cf., United States v. White, 324 F.2d 814 (2d Cir. 1963), Russ seeks to predicate error not on the government’s failure to produce its “special employee” but on its refusal to furnish his identity. The thrust of Russ' argument is that since he declined to take the stand, the informant was the only unbiased witness who might have impugned the government’s identification of Russ as the man who sold narcotics to Paschal. Relying on dicta in United States v. D’Angiolillo, supra,2 Russ vigorously maintains that he was denied a fair trial because he was, in effect, deprived of the option to decide whether or not to summon the informant as a witness in his behalf.

This argument, it was noted in Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957), is not wholly devoid of merit. “Where the disclosure of an informant’s identity * * * is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege [to withhold the identity] must give way.” But, Roviaro also recognized that there is and can be no fixed, mechanical rule for resolving this issue and that doctrinaire approaches will not suffice. Indeed, ultimately, each case turns on its own “peculiar circumstances.” 353 U.S. at 62, 77 S.Ct. 623.

It is true that in Roviaro the Court required disclosure of the informant’s identity. But, there, the “special employee” played a central role in the narcotics transaction. A short while [845]*845after a Treasury Agent had secreted himself in the trunk of the informant’s car, the defendant entered the vehicle, discussed the sale with the informant and, after a stop, placed a package of heroin on the floor. In sharp contrast, the government’s “special employee” in this case merely introduced Paschal to Russ and, as we have noted, wandered away to purchase some food while preliminary negotiations were in progress. And, even of more significance, when Paschal and Russ consummated the sale on a public street corner in full view of Agent Miller, the informer remained inside the Most Bar and did not even witness the most crucial step in the offense.

In many respects, the issue confronting us here is not unlike that recently considered in United States v. Coke, 339 F.2d 183 (2d Cir. 1964), where we held that the government was not required to identify its informant. Coke, it is true, had presented witnesses in his behalf and this Court, therefore, believed that any testimony adduced from the “special employee” would have been cumulative at best; see also United States v. Simonetti, 326 F.2d 614 (2d Cir. 1964). But we noted in Coke that there was no issue of entrapment below, that the informant while more than a mere “tip-off” man did not play a central role in the transaction and that counsel had failed to make clear to the trial judge why the identity of the informant was sought. The case before us bears a striking similarity to Coke in all of these respects. Indeed, while Russ’ counsel vigorously cross-examined Paschal and Miller on the accuracy of their identification of the defendant, the court was never told why a disclosure of the informer’s identity was desired.

Moreover, the testimony concerning Russ’ identity was, in the main, most credible. In addition to describing the sale on August 22, 1964, Agent Paschal noted that he had seen Russ at the Most Bar on two subsequent occasions.

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Bluebook (online)
362 F.2d 843, 1966 U.S. App. LEXIS 5568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-moses-russ-ca2-1966.