Jesus Velarde-Villarreal v. United States

354 F.2d 9 Jesus VELARDE-VILLARREAL, Appellant, v. UNITED STATES of America, Appellee. No. 19834. United States Court of Appeals Ninth Circuit. November 29, 1965. David Edward Creigh, San Diego, Cal., for appellant. Manuel L. Real, U. S. Atty., John K. Van De Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Phillip W. Johnson, Asst. U. S. Atty., Los Angeles, Cal., for appellee. Before POPE, DUNIWAY and ELY, Circuit Judges. POPE, Circuit Judge. 1 Appellant was charged in a two count indictment with knowingly importing heroin into the United States and facilitating its transportation and concealment in violation of Title 21 U.S.C. §§ 173 and 174. After pleading not guilty and waiving jury trial, appellant was tried, found guilty, and sentenced to five years imprisonment upon each count, the sentences to run concurrently. During the trial the appellant moved for the production of one Margarito, a government informer who participated with appellant in the commission of the crime as an employee of the Government agents. Appellant moved in the alternative for a dismissal of the action and a judgment of acquittal. 2 Upon…

Appellant was charged in a two count indictment with knowingly importing heroin into the United States and facilitating its transportation and concealment in violation of Title 21 U.S.C. §§ 173 and 174. After pleading not guilty and waiving jury trial, appellant was tried, found guilty, and sentenced to five years imprisonment upon each count, the sentences to run concurrently. During the trial the appellant moved for the production of one Margarito, a government informer who participated with appellant in the commission of the crime as an employee of the Government agents. Appellant moved in the alternative for a dismissal of the action and a judgment of acquittal.

Upon this appeal from the judgment of conviction appellant assigns as error the *11 failure of the court to order the production of Margarito. He asserts that because of the non-production of this informer-participant the court should have dismissed the action and that we should now reverse the judgment.

The evidence shows that the appellant participated in the sale of heroin to certain Government customs agents. It also shows that Margarito, the informer for the Government, was present and participated in the sale…

(concurring and dissenting):

I agree that the judgment of conviction must be reversed, but I disagree with the directed future course. While the majority opinion reveals the sensitive feel of my Brothers for the cause of justice, their reasoning leads to a point just one step short of the determination which, under the strange facts of this case, I would view as the desired ideal. I would not impose upon the trial court the obligation to conduct a hearing which, in my opinion, can serve no useful purpose. The record clearly indicates that no effort whatsoever was undertaken by the Government to locate the crucial witness. If it is already established that the Government made no effort at all, then how could it now *14 meet the burden of proving that it had, prior to the trial, made the “reasonable” effort which is required ?

I have referred to the facts as “strange”. They are so unique and so disturbing to me that I am compelled respectfully to suggest that the District Court, following remand, should consider another direction.

The appellant was not addicted to the use of narcotics. He had not, as far as the record shows, been previously involved in significant criminal…