Appeal from the United States District Court for the Northern District of Illinois. No. 75 Cr 371 - Hubert J. Will. Judge.
Leonard P. Moore, Senior Circuit Judge,*fn* Pell, and Sprecher, Circuit Judges. Moore, Circuit Judge
Appellant Howard Tucker was indicted for knowingly and intentionally distributing heroin on October 4, 1974, in violation of 21 U.S.C. § 841(a)(1), and was convicted in a bench trial in the district court. His post-trial motion for acquittal was denied and he was placed on probation for a period of five years. Tucker's appeal attacks the judgment of conviction and the "sentence" imposed*fn1 as well as the denial of his post-trial motion. At issue are the applicability, extent, and consequences of a constitutional right of a criminal defendant to disclosure of the identity of a confidential informer of the Government, and the evidentiary rule that if a party has it peculiarly within his power to produce a witness whose testimony would materially elucidate a transaction in question, the failure to produce the witness at trial permits an inference that the witness would testify unfavorably to the party.
For the purposes of this appeal, there is ample evidence in the record to support the trial judge's conclusion that at or about 5:00 p.m. on October 4, 1974, Yvonne Williams, Tucker's co-defendant, sold approximately one ounce of heroin to Special Agent Kenneth Adams of the Drug Enforcement Administration for $1400. Tucker did not contest this evidence at trial, and he does not attack its sufficiency here.
Tucker's theory of defense was and is that he was not involved with this drug transaction. With reference thereto, he points out the uncontested facts that he was not at the scene of the transaction, and that there is no evidence that he received any of the proceeds of the sale. There was, in fact, some evidence that he did not receive any proceeds.*fn2 The Government's theory of criminality is that Tucker knowingly set up the sale by introducing Adams, whom he knew to be a desirous buyer, to Williams, whom he knew to be a willing source, for the purpose of facilitating a transaction between the two. Tucker denies this. If proven, this theory would sustain the conviction, because of 18 U.S.C. § 2(a), which provides that "whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." Section 2(a) need not be specifically pleaded, and a defendant indicted for the substantive offense may be convicted as an aider and abettor, upon proper proof, so long as no unfair surprise results from conviction on the latter theory. United States v. Adams, 454 F.2d 1357, 1358-59 (7th Cir. 1972), cert. denied, 405 U.S. 1072, 31 L. Ed. 2d 805, 92 S. Ct. 1523; Levine v. United States, 430 F.2d 641, 642-43 (7th Cir. 1970), cert. denied, 401 U.S. 949, 28 L. Ed. 2d 232, 91 S. Ct. 962 (1971). No such unfairness was present here, and Tucker asserts no objections on this point.
The critical factual issue at trial was the precise nature of the interactions of Adams and Tucker on October 4 between approximately 2:00 p.m., when they first met, and shortly after 5:00 p.m., by which time the sale in question had been completed. The testimony on this point clashed sharply. Adams testified that he arrived at 2:00 p.m. at an apartment at 6920 South Crandon, in Chicago, by pre-arrangement with a confidential informer, to meet the informer and be introduced to a heroin source. When he arrived, the informer, Tucker, and one Seville Yearby were present. Adams further stated that his informer indicated Tucker as the person they had previously discussed and that he (Adams) and Tucker then discussed price and quality for the purchase of an ounce of heroin. Tucker then telephoned his source, addressing her as "Yvonne," and stated that his people were with him and ready to buy an ounce of heroin. Soon thereafter, Tucker, Adams, the informer, and Yearby all left the apartment. Yearby went his own way, and it is undisputed that neither the Government nor the defense have since been able to locate him. Tucker, Adams, and the informer then proceeded to 6806 South Merrill, Chicago, where Tucker led the other two to a third-floor apartment and into a bedroom and introduced them to Yvonne Williams. She said she was still trying to reach her source and that it would be probably another twenty minutes before she could do so. Adams suggested that he would leave and tend to personal business for an hour or so, and would return then, and Williams agreed. According to Adams, Tucker was present throughout this conversation. Adams and the informer then left the apartment, made contact with surveillance units assigned to the investigation, and returned at about 3:55 p.m. Williams and Adams then left the apartment, consummated the sale, and returned shortly after 5:00 p.m. Williams had a short whispered conversation with Tucker, and then Adams, Tucker, and the informer left the apartment. Upon reaching the street, Tucker stated that he was going to see another friend who dealt in heroin and he went his own way.
Tucker's testimonial version of the events of this period paints quite a different picture. October 4, 1974, was a day off for him from his job with the Department of Environmental Control for the City of Chicago, and he was engaged that day in duties for the Democratic Party, canvassing to encourage voter registration for the upcoming congressional elections. The apartment building at 6920 South Crandon was a part of his assigned territory, and he had been canvassing door-to-door there when he arrived at the sixth floor apartment in which he later met Adams. His knock at that door was answered by an old slight acquaintance known to him only as Gene, who, it develops, was the confidential informer to whom reference has previously been made. The two men chatted briefly, and Gene invited Tucker into the apartment. Thus, if Tucker's testimony is true, he came to the apartment in the course of political duties and entered it at the invitation of an acquaintance coincidentally encountered, not by prearrangement to transact drug-related business.
Once inside the apartment, Tucker testified, he was introduced to Seville Yearby. Gene and Yearby were engaged in a drug-related conversation. Gene was interested in purchasing an ounce of heroin, and Yearby had a small sample of the drug he could obtain for Gene. During these negotiations, Tucker went to the telephone and called Ann Miles, a woman with whom he had lived previously, and by whom he had had a daughter out of wedlock. Miles was in the process of moving, and was staying temporarily with her friend, Yvonne Williams. Tucker had been given the phone number when he met Miles three days previously. He called to say he would shortly bring fifty dollars to Miles for their daughter. She told him the apartment was at 68th and Merrill Streets. Overhearing background noise, Tucker remarked that it sounded like a party was going on at the other end of the line. At this point, Gene asked to speak to Miles and took the phone. Tucker said Miles had previously met Gene through one Mildred Howard, who had also introduced him to Gene. Miles' testimony confirmed this. Tucker heard Gene ask about how many young ladies were present at the apartment Miles was at, but did not hear the balance of the conversation, as he had returned to his seat. Soon after this telephone call, Tucker observed Gene making another call, after which Gene told Yearby that his partner was coming over. Sometime later, Kenneth Adams arrived and joined in the drug-related conversation with Gene and Yearby. Adams directed inquiry to Tucker as to whether he could obtain better price or quality than Yearby was offering, but Tucker stated that he had not messed around with drugs for five years and could not help them. After a little while, Tucker called Miles again, to say that he was on his way and to obtain a more specific address which he had neglected to get when Gene interrupted his earlier call. Tucker left the apartment with the others, and Gene suggested that Adams and he would go over to Miles' place with Tucker. Yearby did not remain with the other three after this point.
Arriving at the South Merrill address, Tucker, Adams, and Gene all went up to the Williams apartment, but Tucker testified that the jointness of their activities there ended at the door. He went to the bedroom briefly to say hello to Yvonne, and then returned with Miles to the living room, leaving Adams and Gene, who had followed him to the bedroom, to their own devices. He did not introduce either to Yvonne Williams, and neither heard nor participated in any drug-related conversations. He spent the next two hours or so playing with his daughter and talking with Miles. He noticed Adams and Gene re-entering the apartment about an hour after they had all arrived, but otherwise did not see them again until they were about to leave the apartment for the last time that day. Noting the time, he decided to go with them, parting company with them when they reached the street.
Tucker called Ann Miles to the stand. There were several minor although not necessarily insignificant discrepancies between her testimony and Tucker's, but basically she supported Tucker's version of those events of October 4, 1974, as to which she had knowledge. She testified, e.g., that Gene had come on the line during a telephone call with Tucker that afternoon, that he had asked about young ladies, and that she gave the line to one young lady to speak with him. She stated that Tucker came to the apartment at 6806 South Merrill to give her fifty dollars for their child, and that he did in fact do so. She stated also that she was with Tucker virtually the entire time he was at the apartment, and that she heard no drug-related conversations in which Tucker or anyone else took part.
Tucker, in short, denied all involvement in the October 4 heroin sale from Williams to Adams, and he offered a witness to support his version of the events of that day, at least in part. To explain the apparently otherwise unlikely coincidence that two people he happened to encounter at 6920 South Crandon just happened to be en route to a drug transaction at the same apartment he was headed to, without his knowledge, he and his counsel articulated two theories at trial. First, Gene, in speaking with Miles or the other young lady he is said to have spoken with or perhaps yet another person, may have developed reason to believe that a heroin connection could be made at the apartment to which Tucker was headed, and Gene and Adams may have accompanied Tucker to the South Merrill address with this in mind. Alternatively, Gene and Adams may have done all that could be done with Yearby that day, and may have gone along with Tucker to the scene of a party simply to extend their networks of acquaintances and contacts for possible later use. Once there, under this theory, they followed up on the promising lead that developed. Agent Adams' testimony, as we have noted, was to a directly contradictory effect.
We have set out this testimonial material at some length, not because we conceive it to be our task to determine who the trial judge should have believed, but instead to delineate the precise factual issue presented at trial and to indicate the essentially one-on-one nature of the testimony presented pertinent thereto. The issues on this appeal revolve around Gene, the witness whose identity and whereabouts were never disclosed to the defense, who was never made available for questioning, and who was not called by the Government to testify. As is evident from our review of the testimony, Gene was present at all times when Tucker allegedly said or did the things on which his conviction is based. As the Government candidly conceded on oral argument here, the conviction could not have been obtained if testimony about conversations and actions which Gene had witnessed had been excluded. Moreover, in the absence of the elusive Mr. Yearby, who neither the Government nor the defense could locate, Gene was in a unique position to shed light on the sharp factual controversy presented by Adams' and Tucker's testimony.
Recognizing the potential importance of the informer to the defense, defense counsel, in discovery motions and in open court in pre-trial proceedings, repeatedly asked the trial judge to compel the Government to disclose the informer's identity and whereabouts, or at least to make the informer available for an interview. The Government, as it conceded at oral argument, never made any showing of any danger to the informer that might result from disclosure. In pre-trial proceedings on October 28, 1975, the trial judge stated that Tucker was entitled to know the name of the informer, and directed the Government to "get the mechanics set up" for an interview with defense counsel. In proceedings on November 11, 1975, the Government admitted that it had not complied, and sought reconsideration of the trial judge's directive. Because at that time it remained a possibility that Seville Yearby could be found, the trial judge deferred the matter of the informer disclosure. On December 1, 1975, the trial judge reminded the Government of its obligation to maximize efforts to find Yearby if it wished to keep the identity of its informer secret. Yearby, of course, was never located, and the matter stood thus when trial opened on February 12, 1976. Defense counsel raised the disclosure issue again before the trial began. Once again, the trial judge indicated that Tucker was entitled to identity disclosure. Discussion ensued, and the Government represented that the informer would not be called as a witness against Tucker. At this point, the trial judge made the following ruling:
MR. BRIZIUS [Defense Counsel]: Well, it is going to be the agent's word against my client's word, and we could disprove it with the confidential informant.
THE COURT: Well, more than that. You are entitled for me to assume that the confidential informant if he is not called would testify favorably to your client because he is known to the government and he is not known to you. So I don't think you need the confidential informant. You are better off not to have him, I think, because if the government doesn't call him, then you are entitled to have me assume that he would testify favorably to your client, at which point the government will never establish beyond a reasonable doubt that what the agent says is true and that what your client says is false ...