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United States v. Twomey

March 27, 1972

UNITED STATES OF AMERICA EX REL. CURTIS ABBOTT, PETITIONER-APPELLANT,
v.
JOHN TWOMEY AND PETER BENSINGER, RESPONDENT-APPELLEES



Swygert, Chief Judge, Duffy, Senior Circuit Judge and Grant,*fn* District Judge.

Author: Duffy

DUFFY, Senior Circuit Judge.

After a jury trial in the Circuit Court of Cook County, Illinois, petitioner Abbott was convicted of selling heroin on three separate occasions. The Court imposed concurrent sentences of fifteen to thirty years on each of the three counts.

On December 1, 1970, having exhausted his state remedies, petitioner sought federal Habeas Corpus relief. After denial of the petition by the District Court, the Judge granted a certificate of probable cause.

During the state court trial, three witnesses testified for the State -- Inspector Donald Norton, Inspector Paul Hemphill and an informer, Harry Schwartz who was called by court order upon motion by the defense.

Inspector Norton was the principal witness to and participant in all three drugs sales which formed the basis of the indictment against petitioner. For six years previously, he had worked for the Illinois Division of Narcotics. He had been instrumental in obtaining some two hundred convictions. Inspector Norton had found, on previous occasions, that Schwartz's information was reliable.

An examination of the record discloses that petitioner was not denied effective cross-examination of Schwartz by the suppression of questions as to his real identity, residence and place of business. Moreover, petitioner admitted having known Schwartz for a period of about six years.

On this appeal, petitioner argues that he was denied his constitutional right to confront his accusers. Abbott contends the suppression of questions by his counsel at trial as to the identity of Schwartz as well as his address and place of business was reversible error relying on the Supreme Court opinion in Smith v. Illinois, 390 U.S. 129, 88 S. Ct. 748, 19 L. Ed. 2d 956 (1968).

In Smith, supra, the Supreme Court held the trial court committed reversible error when an informer's true name and address were suppressed. Yet, in Smith, the informer was the principal prosecution witness to testify against the defendant. The Supreme Court found this fact to be determinative when it stated, at page 130, 88 S. Ct. at page 749: "The only real question at trial, therefore, was the relative credibility of the petitioner and this prosecution witness."

The informer, Harry Schwartz, was not, in this case, a principal or crucial prosecution witness. In petitioner's trial for three counts of sale of heroin, Inspector Norton was the key witness. He alone witnessed and participated in all three transactions which were the basis of the indictment. Inspector Norton was alone with petitioner in the last two transactions. The witness Schwartz was present only at the first transaction on March 11, 1966, and he was not actually a party to the sale which petitioner made on that date.

Petitioner attempts to bring his allegations within the Smith rule by claiming entrapment. He asserts that an appeal was made to his sympathies. All evidence, excepting that of petitioner, is against this contention. Furthermore, several Illinois decisions have held that appeals to a defendant's sympathy or friendship do not constitute entrapment under the Illinois law. See People v. Hall, 25 Ill.2d 297, 185 N.E.2d 143 (1962), cert. den. 374 U.S. 849, 83 S. Ct. 1912, 10 L. Ed. 2d 1069. See also United States ex rel. Hall v. Illinois, 329 F.2d 354 (7 Cir., 1964), cert. den. 379 U.S. 891, 85 S. Ct. 164, 13 L. Ed. 2d 94.

Since Schwartz was not a principal prosecution witness and since his testimony was not crucial to the defense, the real issue at the trial was not the credibility of Schwartz. We hold that the Smith ruling on disclosure of the witness-informer's true identity is not applicable to the case at bar.

In a situation somewhat analogous to the case at bar concerning suppression of an informer's true identity, the Supreme Court has decided that the identity of a nonwitness narcotics informer need not always be disclosed to the defendant. Roviaro v. ...


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