United States v. Kenneth Godkins

GEE, Circuit Judge

(specially concurring):

Believing that we should remand for an in camera hearing on the need for witness Doe’s information, I disagree with the majority’s refusal to take Roviaro to its logical next step. On its facts, Roviaro merely prevents an accused in some circumstances from requiring the government to disclose a confidential informant’s identity. But this protection necessarily shields government agents from defense questions seeking information that would tend to reveal the protected identity. And if the government’s interest in secrecy so outweighs the accused’s right to prepare his defense that defendant can be prohibited from asking a witness questions that might reveal an informant’s identity when the witness is a government agent, then surely we should likewise prevent defendant from asking similar questions when the witness is the very person whom defendant suspects of being the informant.1 As we have done several times recently when the government sought to learn an informant’s identity,2 I would order the trial judge to conduct an in camera examination of the witness to aid in striking the Roviaro balance. If the balance favors the government,3 then defendant should be permitted to ask only questions that would not tend to reveal the informant’s identity. If defendant has no other questions, the judge need not order the witness to appear in open court at all. The majority claims that this would violate defendant’s right to compulsory process. But *1328that right is not absolute, and it can be outweighed not only by other constitutional rights, but by “the legitimate demands of the adversary system.”4 And if the witness is privileged from answering all proposed questions, then as we held in United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir. 1974) (defendant cannot require to take the stand a witness who intends to exercise his fifth amendment right to remain silent), defendant’s right to compulsory process is exhausted by the witness’s physical availability for the in camera hearing, and the judge can properly refuse to permit defendant to call the witness at trial.

. I take issue with the majority’s statement that the Roviaro Court’s reasons for shielding the informant’s identity would not be furthered here. Compelling witness Doe to testify at retrial might very well expose him (or if not Doe, the real informant) to retaliation from Godkins by verifying his strong suspicion that Doe is the informant, to revenge from others against whom Doe (or the real informant) may have informed previously by publicly exposing his identity at trial, and to possible danger in any future work as a government informant. For the same reasons, exposure of the informant in open court would probably destroy his future usefulness as an informer and hamper recruitment of other informers.

. See Alvarez v. United States, No. 74-3730, 525 F.2d 980 (5th Cir., 1976); United States v. Doe, No. 75-2373, 525 F.2d 878 (5th Cir., 1976); and United States v. Freund, No. 75-1100, 525 F.2d 873 (5th Cir., 1976).

. Recognizing, of course, as we did in United States v. Gomez-Rojas, 507 F.2d 1213, 1219 (5th Cir. 1975), that the balance when defendant asserts entrapment by an informant usually, but not always, favors disclosure.

. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 2171, 45 L.Ed.2d 141 (1975) (court can choose to prevent a witness from taking the stand if his testimony is properly excludable). See also United States v. Deaton, 468 F.2d 541 (5th Cir. 1972) (no error in denying defense motion for compulsory process when proposed testimony is inadmissible hearsay or irrelevant); Hoskins v. Wainwright, 440 F.2d 69, 71 (5th Cir. 1971) (no denial of right to compulsory process when pauper defendant fails to make colorable showing of need for production of the witness at government expense).