Fioravanti's office. Agent Abrams was able to locate Mr. Lewis and brought him to Mr. Fioravanti's office during the month of March, 1974. At that meeting, attended by Mr. Abrams and John Buchanan, an undercover police officer attached to DEA Task Force, Mr. Lewis told Mr. Fioravanti that he was frightened and did not want to testify against Mr. Jones. Mr. Fioravanti told Mr. Lewis that he would probably be required to appear at trial and that Mr. Lewis should keep Agent Abrams apprised of his whereabouts at all times. Mr. Lewis assured Mr. Fioravanti that he would work with Agent Abrams. Thereafter, until May of 1974 (when Agent Abrams was transferred to Germany), Mr. Fioravanti received periodic reports from Agent Abrams that he was maintaining contact with Aubrey Lewis. After Agent Abrams left for Germany on special assignment in May of 1974, Mr. Fioravanti directed Officer Buchanan to keep in contact with Mr. Lewis. However, Officer Buchanan was not able to locate Mr. Lewis. During this period Mr. Fioravanti was asked by the defendant's counsel if he would make Mr. Lewis available for an interview. Mr. Fioravanti told defense counsel that when Mr. Lewis was located, and before trial, defense counsel would have an opportunity to interview Mr. Lewis. On June 25 or 26, the prosecution of this case was transferred to another Assistant United States Attorney, Susan Harmon.
On June 27, 1974, Ms. Harmon issued a subpoena for Aubrey Lewis. Special Agent John Smith of DEA was given the subpoena for service. On June 28, 1974, after researching DEA files to obtain an identification of Mr. Lewis and to ascertain the locations at which Mr. Lewis had reportedly been living, Agent Smith visited four locations in North Philadelphia. These locations were (1) 2908 Westmont Street, the residence of Mr. Lewis' wife, Charlotte Lewis; (2) 1917 North Darien Street, an address obtained from Mr. Lewis' attorney and at which he had recently resided; (3) 1226 Tucker Street, reportedly a previous address of Mr. Lewis' father and; (4) 1212 Poplar Street, allegedly the address of Mr. Lewis' mother, who had died four or five years earlier. Agent Smith was unable to obtain any useful information as to the whereabouts of Aubrey Lewis at any of these locations. Nevertheless, on July 2, 1974, Agent Smith returned to the Tucker Street and the North Darien Street locations but was again unsuccessful in his attempt to obtain information concerning Mr. Lewis' whereabouts.
Agent Smith also contacted the Court of Common Pleas of Philadelphia County on June 28, 1974, and learned that Mr. Lewis was scheduled for a court appearance on July 18, 1974. On July 1, 1974, Agent Smith continued his search for Mr. Lewis by contacting Officer John Buchanan. He was told by Officer Buchanan that there was a possibility that Mr. Lewis was living at 3516 Warnock Street. However, Agent Smith did not locate Mr. Lewis at that address. On July 9, 1974, Agent Smith spoke with Aubrey Lewis' wife. Mrs. Lewis told Agent Smith that she did not know where Mr. Lewis was residing and that Mr. Lewis was not residing with her and that he provided her with no financial assistance.
Special Agent Ralph Carter of the FBI then testified that his office received a letter from Mr. Dixon, an Assistant United States Attorney who was the government's trial attorney at the second trial, which letter requested help from the FBI in locating Mr. Lewis. Agent Carter conducted a full indices search on Mr. Lewis. The search revealed no information, which was reported to Agent Smith on July 8, 1974.
On July 5, 1975, the emergency Judge signed a bench warrant for the arrest of Aubrey Lewis. Kenneth Burke, a Deputy United States Marshal, attempted to serve the bench warrant on July 9, 1974, at 2908 Westmont Street in Philadelphia. Mrs. Lewis met Deputy Marshal Burke at that location and informed him that she did not know the whereabouts of Mr. Lewis. Deputy Marshal Burke was never able to serve the bench warrant. On July 3, 1974, defendant's counsel issued a subpoena for Aubrey Lewis to testify in this case. On July 6, 1974, Deputy Marshal Wayne Dorsche received the assignment to serve the subpoena. The subpoena issued by defense counsel listed five addresses in North Philadelphia for Aubrey Lewis. Deputy Marshal Dorsche testified that he visited all five of these locations but was unable to locate Mr. Lewis.
The jury was sworn at this the second trial on July 10, 1974 and the Court ordered the government to continue its efforts to locate Mr. Lewis. Officer Buchanan testified that he continued his search for Aubrey Lewis from April, 1974 until the end of the second trial. The defendant contends that the government again failed at this second trial to meet its obligation to make Mr. Lewis available for the defendant's use at trial. It is the defendant's contention that the efforts of the government to secure the presence of Mr. Lewis reveals a failure on the part of the government to exercise appropriate diligence to make the informant available.
The government does not have an absolute duty to make an informant available to the defendant for his use at trial. United States v. Ferguson, 162 U.S. App. D.C. 268, 498 F.2d 1001 (1974); cert. denied 419 U.S. 900, 42 L. Ed. 2d 145, 95 S. Ct. 183; United States v. Moore, 446 F.2d 448 (3d Cir. 1971); United States v. White, 324 F.2d 814 (2d Cir. 1963); United States v. Cimino, 321 F.2d 509 (2d Cir. 1963); Williams v. United States, 273 F.2d 781 (9th Cir. 1959). The United States Supreme Court in Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957), held that the identity of an informant, or of the contents of his communication, must be disclosed to a defendant where it is relevant and where it would be helpful to the defense, or is essential to a trial. In Roviaro, the government refused throughout the trial to reveal the identity of the informant to the defendant. The Roviaro rule has no application to a situation such as the instant case where the identity of the informant was disclosed to the defendant almost two years in advance of the second trial.
The Second Circuit has summarized the government's duty in connection with making an informant available to the defendant for his use at trial in United States v. D'Angiolillo, 340 F.2d 453 (2d Cir. 1965):
The rule emerging from these and earlier decisions is that, where the informer's testimony may be relevant to the defense, the defendant is entitled to his name, to such information as the government may have concerning his whereabouts, and to reasonable cooperation in securing his appearance. 340 F.2d at 455. (footnote omitted).
In sending this case back for a second trial, our Circuit Court was dealing with a situation in which the government had not revealed the name of the informant in advance of the trial and in their opinion the government had not made a sufficient effort to have the informant available to the defendant. This was not the situation in connection with the second trial. The defendant was aware of the identity of the informant from August 2, 1972, when, during the first trial of this case, the Court ordered the government to reveal the identity of the informant and to assist the defendant in locating him.
Furthermore, after the Circuit Court ordered a retrial of the case, the evidence shows that the government made a continuing effort to maintain personal contact with the informant. These efforts were at first successful but later proved futile. The Court is satisfied that in the circumstances of this case the government has more than satisfied its obligation to make Mr. Lewis available for the defendant's use at trial.
On July 18, 1974, two days after the jury returned its verdict of guilty, Mr. Lewis was found and brought in on the bench warrant. On July 19, 1974, a hearing was held at which Mr. Lewis was represented by counsel. He testified that he was instructed by Mr. Fioravanti to maintain contact with Agent Abrams. Mr. Lewis, however, refused to answer any questions concerning the transactions involving the defendant on the night of August 26, 1971 on the ground that such answers might tend to incriminate him. He did state, however, that he was afraid to testify and that had he been produced at trial, he would not have testified for the defendant but would have asserted his Fifth Amendment right against self-incrimination. (N.T. Post Trial Hearing, 68, 69). The defendant was therefore unable to show that Aubrey Lewis would have been of any assistance to the defendant had he been available at the second trial. See United States v. Ferguson, 162 U.S. App. D.C. 268, 498 F.2d 1001, 1006 (1974).
Assertion by Informant of His Fifth Amendment Right Against Self-Incrimination.
Mr. Lewis was brought before the Court on July 19, 1974, at which time he had counsel. The Court told all counsel that it was seeking from Mr. Lewis testimony concerning two areas: (1) Where Mr. Lewis had been prior to and during the trial of this case, and (2) What testimony Mr. Lewis would have given had he been called to testify as a witness at the trial. Mr. Lewis answered some questions and the Court directed him to answer other questions; but when he was questioned concerning the facts surrounding the transactions at the Wanda Inn on the night of August 26, 1971, Mr. Lewis was permitted to assert his Fifth Amendment right against self incrimination. The defendant contends that permitting Mr. Lewis to assert his Fifth Amendment right violated the defendant's right to due process and that the government was required to grant Mr. Lewis immunity to compel his testimony.
In United States v. Mahady & Mahady, 512 F.2d 521 (3d Cir. 1975), our Circuit Court reiterated the circumstances in which a witness may invoke the privilege against self incrimination and the responsibility of the court when ruling upon a claim of privilege as follows:
The Supreme Court has specifically held that the privilege against self-incrimination may be invoked by a compelled witness in any proceeding when his answers to questions "might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 38 L. Ed. 2d 274, 94 S. Ct. 316 (1973).
In so holding the Court said at page 77: