The life of a trial lawyer is a hectic one at best, and when defense counsel in a criminal case is required to try the case at the same time that efforts must be made to locate a missing witness or secure important information, duodenal lesions may result. More importantly, when prosecutorial errors lead to unsuccessful last minute scurrying by the defendant's lawyer, basic rights may be impaired. We approach this case with that consideration in mind.
The defendant Robert Jones was convicted of possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a) (1). The offense stemmed from negotiations for the sale of heroin which had been arranged by and conducted through a government informer who did not testify at the trial.
The prosecution presented its case through two agents of the Bureau of Narcotics and Dangerous Drugs. The testimony of these men revealed that the informant, acting on behalf of Agent Brown and another agent, made the necessary arrangements for them to meet with defendant Jones on August 26, 1971. On that evening the agents and informant sat at the bar of the Wanda Inn in Philadelphia, Pennsylvania and were soon joined by the defendant. After some discussion, Agent Brown agreed to buy an ounce and a half of heroin if it could be "cut" five times. He refused to make any payment until he was given the opportunity to test a sample.
After stating that he had to make a phone call, Jones left the Inn and returned in about ten minutes to where the agent was seated. The defendant said that the sample would be arriving in about fifteen minutes and again left the bar.
When he re-entered some time later, the defendant seated himself on the opposite side of the oval shaped bar and called the informant over. The two conversed, and Brown testified that he then observed the defendant and the informer move their hands under the bar. Because of the obstruction of the bar and the dim lighting in the Inn, the agent could not see any objects being transferred.
The Informant then walked around the bar to Brown and gave him two glassine envelopes containing heroin. After being summoned by the agent, the defendant came over to Brown, and in response to his feigned confusion, Jones pointed to one of the envelopes saying it was ready for the "street" and to the other saying that it could be "cut." The defendant then gave Brown a telephone number which was to be used to make further arrangements for the purchase of heroin.
There is nothing in the record to indicate that the informant had been searched before the meeting took place, an omission which has some bearing on the defense claim that the missing testimony might be very important.
The defendant was arrested on December 22, 1971, some four months later, and charged with possession, distribution, and possession with intent to distribute heroin. After the district court dismissed the simple possession count for reasons not shown on the record,*fn1 the jury returned a verdict of guilty of possession with intent to distribute and not guilty to the count of distribution. Defendant's motions for a new trial and for acquittal were denied.
The evidence of guilt is hardly overwhelming, and although we recognize that constructive possession may be shown by circumstantial evidence, United States v. Crippen, 459 F.2d 1387 (3rd Cir. 1972), it is necessary also that the government surmount the hurdle posed by United States v. Pratt, 429 F.2d 690 (3rd Cir. 1970). Since a new trial must be had, however, we do not pass upon those issues here.
The paucity of the government's evidence does demonstrate the importance of the informant's knowledge and underlines our concern with the fact that the prosecution did not make him available for trial.
While defense counsel was advised at a pretrial conference that an informer was in the case, no disclosure of the name was made at that time in accordance with the policy of the Bureau of Narcotics. It was not until after testimony had commenced that the Assistant United States Attorney conceded to the trial judge that the name of the informer should be revealed to the defense.
We are well aware of the very practical problems connected with premature disclosure and do not wish to be understood as being unduly critical of the government's conduct in this particular.*fn2 The difficulty here is that defense counsel was not told until July 31, 1972, the day on which the jury was selected, that the government did not intend to call the informant as a witness. Furthermore, it was not until this day that the case agent (not Brown) made a telephone call to the informant's residence in an effort to learn of his whereabouts. The call was not productive, and on the following day (when testimony actually commenced in the courtroom) two agents were dispatched to the informant's presumed residence and later to his place ...