UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 92-5582
Summary Calendar
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United States of America,
Plaintiff-Appellee.
VERSUS
Enrique L. Orozco,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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(January 21, 1993)
Before JONES, DUHÉ, and BARKSDALE, Circuit Judges
DUHÉ, Circuit Judge:
Defendant-Appellant Enrique Orozco (Orozco) appeals from drug
and firearm convictions. He contends that the district court erred
in denying his motions to suppress and to compel the Government to
disclose the identity of an informant. He also contends that the
court erred in denying his counsel access to the contents of an in
camera hearing on disclosure of the informant. We find appellant's
contentions without merit, and accordingly affirm his conviction.
Background
On February 25, 1991, two San Antonio police officers
confronted Orozco in a shopping center parking lot and arrested him
without a warrant. Just prior to the arrest, one of the officers,
Detective Casias, observed Orozco engage in three apparent sales of
heroin packaged in balloons. Casias had been alerted by another
officer that a Latin male on a bicycle, fitting Orozco's
description, was apparently selling narcotics in the vicinity.
Casias spotted Orozco, called to confirm his description, and
followed Orozco into a parking lot. Orozco approached a black male
who, after a brief conversation, handed money to Orozco. In
return, Orozco gave him a small object which he removed from his
mouth.1 Orozco then rode to another parking lot where he
approached a red pick up truck. The driver passed something to
Orozco. Casias could not see what the truck driver gave to Orozco,
but he did see Orozco take a small object from his mouth and hand
it to the driver. Another subject approached the truck, and a
similar transaction took place between Orozco and that subject.
Detective Casias called for assistance, and Orozco was
apprehended shortly thereafter. A small heroin-filled balloon fell
from Orozco's mouth as he was taken into custody, and another was
found at his feet. Additionally, the officers removed a loaded .22
caliber revolver from Orozco's waistband and $519 from his pants
pocket. Orozco filed a motion to suppress the evidence obtained
from this warrantless search contending that the officers did not
have probable cause to search him. During a pretrial hearing, the
court denied Orozco's motion.
1
Casias, who had witnessed or participated in thirty to
forty heroin transactions, knew that street dealers often stored
heroin-filled balloons in their mouths to allow for easy swallowing
if the police were to arrive.
2
In March 1991, while out on bond from his February 25th
arrest, Orozco made a street sale of heroin to undercover detective
Saucedo. Saucedo did not arrest Orozco after the transaction, but
identified him from a police photograph six days later. At trial,
Saucedo testified without objection that he had identified Orozco
from a photographic line-up. During cross-examination, he
disclosed for the first time that he had been accompanied by an
informant during the drug buy. After the prosecution rested, the
defense moved for disclosure of the informant's identity on the
ground that he might be able to testify that Orozco was not the
person who sold the drugs. After an in camera hearing which
excluded Orozco, defense counsel and the prosecutor, the court
denied the motion. A jury found Orozco guilty on all counts.
Orozco appeals.
Discussion
I. Probable Cause
Orozco contends that the district court erred in finding that
Detective Casias had probable cause to arrest Orozco. During the
warrantless arrest, the officers seized a gun, heroin, and money.
Orozco argues that the officers may have had reasonable suspicion
of criminal activity when they approached him, but exceeded the
permissible scope of an investigative stop by seizing him.
Therefore, he argues, the evidence seized should have been
excluded. We disagree.
The existence of probable cause is a question of law and
greatly dependent upon the factual findings. United States v.
3
Hernandez, 825 F.2d 846, 849 (5th Cir. 1987), cert. denied, 484
U.S. 1068 (1988). Probable cause to arrest "exists when the facts
and circumstances within the knowledge of the arresting officers
are sufficient to warrant a person of reasonable caution to believe
that an offense has been or is being committed." United States v.
Rocha, 916 F.2d 219, 238 (5th Cir. 1990), cert. denied, ---U.S.---
, 111 S.Ct. 2057 (1991) (citations omitted). The ultimate issue is
one of law, but the underlying factual findings from which a
district court deduces probable cause are reviewed only for clear
error. Hernandez, 825 F.2d at 849.
Detective Casias is a veteran police officer knowledgeable
about the sale of heroin on the street. Only minutes after he was
informed that a Latin cyclist was in the vicinity selling drugs,
Orozco, matching the description exactly, pedaled past the officer.
Within a period of fifteen to twenty minutes, Detective Casias
witnessed Orozco make three apparent sales of heroin. The
distinctive nature of the transaction, concealing the heroin in a
balloon in the mouth, makes it easily recognizable to a veteran
police officer. Finally, the location of the arrest was well known
as an area where drug activity was common. Given all of these
factors, we conclude, as did the district court, that the facts and
circumstances were sufficient to warrant a person of reasonable
caution to believe that an offense was being committed.2
2
Much is made over whether Detective Casias saw an orange
balloon fall out of Orozco's mouth before or after he made physical
contact with Orozco, and whether the court's finding that the
balloon fell out before physical contact is erroneous. Because we
have determined that probable cause existed prior to the time
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II. Disclosure of Informant's Identity
Orozco argues that the district court erred in denying his
motion to compel the Government to disclose the identity of the
confidential informant who was an eyewitness to the sale of heroin
to Detective Saucedo. He contends that the failure to order
disclosure deprived him of the opportunity to properly prepare and
present his defense of misidentification. We reject this
contention.
The Supreme Court, in Roviaro v. United States,3 examined the
disclosure issue. It held that the court must balance the benefits
of disclosure and production of the informant to the Defendant
against the resulting harm to the State. Id. at 62. In numerous
cases applying Roviaro, this Court has established a three part
test to determine whether disclosure is mandated. United States v.
De Los Santos, 810 F.2d 1326, 1331 (5th Cir. 1987), cert denied,
484 U.S. 978 (1987) (citations omitted). First, we evaluate the
level of the informant's participation in the alleged criminal
activity. Next, we consider the helpfulness of disclosure to any
asserted defense. Finally, we consider the government's interest
in nondisclosure. Id. We review the district court's action for
abuse of discretion. United States v. Vizcarra-Porras, 889 F.2d
1435, 1438 (5th Cir. 1989), cert. denied, 495 U.S. 940 (1990).
Detective Casias stopped to arrest Orozco, the finding challenged
by Orozco is irrelevant.
3
353 U.S. 53 (1957).
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The court may conduct an in camera hearing when necessary to
balance the conflicting interests involved. United States v.
Freund, 525 F.2d 873, 877 (5th Cir.), cert. denied, 426 U.S. 923
(1976). This limited disclosure of identity to the trial judge
protects the government's interest in maintaining anonymity while
also insuring the defendant's interest in having access to any
witness who possesses facts which would aid him in his defense.
Id.
After properly conducting such an in camera hearing, the
district court found that
based upon what the witness had testified, that the
informant in this case was not a participant in the drug
transaction, that he played a very minor role, that he
might not have observed the actual transaction take
place. There's no information to indicate that he would
not identify the accused on trial and that there is a
real danger to this informant, and that even if his
identity . . . were to be made known at this late date,
the officer does not know his whereabouts and there could
be a problem in trying to track this person down.
Weighing all those factors along with the value and need
that the defense might have, the court thinks that the
identity of the informant is not crucial to the defense,
that he was not a participant in a drug transaction. He
would in all likelihood not give any testimony that would
be in any way favorable to the defense, and for his own
safety the court will deny the defense request that his
identity be made known to the defense.
In reviewing the testimony of the in camera hearing and the other
relevant evidence, we conclude that the district court did not
abuse its discretion in refusing to compel disclosure of the
informant's identity.
If the informant's participation is minimal, the Roviaro
balance favors nondisclosure. De Los Santos, 810 F.2d at 1331.
"Even though an informant is present during a critical transaction,
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the fact that he does not actively participate favors
nondisclosure." United States v. Gonzales, 606 F.2d 70, 75 (5th
Cir. 1979)(citations omitted). In this instance, the informant
played a very minor role in the transaction, did not participate in
the transaction, and may not have even observed the transaction.
Based on this evidence, this factor weighs in favor of
nondisclosure. See United States v. Diaz, 655 F.2d 580, 588 (5th
Cir. 1981), cert. denied 455 U.S. 910 (1982).
The second factor is the relationship between the defendant's
asserted defense and the probable testimony of the informant.
Gonzales, 606 F.2d at 75 (citations omitted). The defendant must
make a sufficient showing that the testimony would significantly
aid the defendant in establishing an asserted defense. Diaz, 655
F.2d at 588. "[M]ere conjecture or supposition about the possible
relevancy of the informant's testimony is insufficient to warrant
disclosure." Gonzales, 606 F.2d at 75. In the instant case, the
defendant has failed to meet this test. He speculates that the
informer's testimony might contradict that of the officer, but
provides no evidence to support this claim. Appellant's counsel
said nothing about mistaken identity in his opening statement.
Orozco did not testify or offer any other evidence to corroborate
his misidentification defense. Nor did defense counsel question
the detective about his identification of Orozco from a police
photograph just six days after the transaction took place. In
light of these facts, it is difficult "to avoid the conclusion,
that counsel preferred, as a tactical choice, to denounce [the
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informant's] absence [rather] than to secure [the informant's]
presence." United States v. Webster, 606 F.2d 581, 585 (5th Cir.
1979), rev'd on other grounds, 649 F.2d 346, 351 n.11 (5th Cir.
1981).
Finally, we examine the government's interest in
nondisclosure. The government's interest relates to both the
safety of the informant and the informant's future usefulness to
the authorities as a continuing confidential source. United States
v. Ayala, 643 F.2d 244, 247 (5th Cir. 1981). Although the future
usefulness of this informant was not discussed, the findings of the
court clearly indicate that revealing the identity of the informant
would place him in real danger.
In sum, we conclude that the interests weigh in favor of
nondisclosure. Therefore, we hold that the district court did not
abuse its discretion in withholding the identity of the informant.
III. Right to Effective Assistance of Appellate Counsel
Pending this appeal, Orozco moved the district court to unseal
the videotape of the in camera interview with Detective Saucedo.
Appellant alternatively requested that counsel be permitted to view
the tape under a protective order without him present. The
district court denied both requests. Orozco argues that this
deprived him of his rights to effective assistance of counsel and
due process of law. We find this argument meritless.
The district court may employ procedures necessary to protect
the competing interests of the parties. In determining the proper
balance of these interests, the trial judge, in the exercise of his
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discretion, determines the appropriate procedures. United States
v. De Los Santos, 819 F.2d 94, 97 (5th Cir. 1987). The use of the
in camera hearing has been cited approvingly many times by this
Court. See, e.g., De Los Santos, 810 F.2d at 1329, 1333-1334;
United States v. Fischer, 531 F.2d 783, 787-88 (5th. Cir. 1976);
United States v. Doe, 525 F.2d 878, 880 (5th Cir.), cert. denied,
425 U.S. 976 (1976).
In this case, the court determined that disclosure of the
information gained during the in camera hearing would pose a real
danger to the informant if revealed. To unseal the record of the
interview now would "defeat the very purpose of the in camera
procedure." United States v. Singh, 922 F. 2d 1169, 1172 n.2 (5th
Cir.), cert. denied, ----U.S. ---, 111 S.Ct. 2066 (1991).
Additionally, in De Los Santos, this Court held that "the
defendant's sixth amendment right to assistance of counsel . . . is
not violated by an in camera proceeding used to determine whether
the disclosure of an informant's identity would benefit the defense
and therefore should be revealed." De Los Santos, 810 F.2d at 1335
(citations omitted). Likewise, appellate counsel is not rendered
ineffective because she has not reviewed that which trial counsel
did not participate in. As in all other cases involving a sealed
record, this Court will review the assignment of error after
considering the sealed portion of the record. See, e.g., Singh,
922 F.2d at 1172. Therefore, we refuse to disturb the sealed
portion of this record, and affirm the rulings of the district
court.
For the foregoing reasons, the judgment of the district court
is
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AFFIRMED.
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