United States v. Robert Dale Hart, United States of America v. Ruben Morales Robles

Hart and Robles appeal their convictions for distributing cocaine in violation of 21 U.S.C. § 841 (a)(1). The appellants, who were tried separately, sold cocaine to government agents pursuant to arrangements made by paid informants. Their only defense was entrapment.

The appeal presents two questions: (1) Did the district court err in denying the appellants’ respective motions to continue for failure of the government to 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?

I.

The court took this case en banc to determine whether the government was a “guarantor” of the presence of an informant at the trial of a ease 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);…

(concurring and dissenting):

I concur in my Sister Hufstedler’s opinion, based, as it is, on the solid precedential authorities of our court. I would go further, 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.

(concurring and dissenting):

I concur in Part II of the majority opinion holding that 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 residents of Mexico. For about a year and a half before the Hart-Robles episode, DEA had used Murietta’s services as an informant. Agent Lugo had employed Murietta in 16 different investigations during the period, 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 informing, were about $400. Neither informant was on a regular payroll. They were paid “rewards” for successful “investigations.” DEA paid them nothing if their activities did not produce an arrest. If an arrest resulted, DEA increased their compensation…

(concurring and dissenting):

Like Judge Hufstedler, I concur in Part II of Judge Trask’s majority opinion. In all other respects, save one, I join in Judge Hufstedler’s dissent. I differ with Judge Hufstedler in her view 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 required reasonable efforts to produce the informants is clearly erroneous. Unlike Judge Trask, however, and like Judge Hufstedler, I am convinced that the finding is, in these cases, clearly erroneous, 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 , 68 S.Ct. 525, 542 , 92 L.Ed. 746 . Therefore I concur, except in this one respect, in Judge Hufstedler’s dissent.

546 F.2d 798 UNITED STATES of America, Appellee, v. Robert Dale HART, Appellant. UNITED STATES of America, Appellee, v. Ruben Morales ROBLES, Appellant. Nos. 74-3001, 74-3270. United States Court of Appeals, Ninth Circuit. July 22, 1976. Rehearing and Rehearing En Banc Denied Aug. 19, 1976. Louis L. Deckter (argued), Tucson, Ariz., for appellant in 74-3001. Michael J. Brown (argued), Tucson, Ariz., for appellant in 74-3270. William C. Smitherman (argued), U. S. Atty., James E. Mueller (argued), Asst. U. S. Atty., Tucson, Ariz., for appellee. Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED, and KENNEDY, Circuit Judges. TRASK, Circuit Judge: 1 Hart and Robles appeal their convictions for distributing cocaine in violation of 21 U.S.C. § 841 (a)(1). The appellants, who were tried separately, sold cocaine to government agents pursuant to arrangements made by paid informants. Their only defense was entrapment. 2 The appeal presents two questions: (1) Did the district court err in denying the appellants' respective motions to continue for failure of the government to produce the informant Murrieta, who was the key figure in…