ML20028D910

Forwards Assoc for Women in Science Vs Califano & Us Vs Long,Federal Court Cases Not Cited in NRC Brief.Counsel May Rely on Cases During Oral Argument

ML20028D910
Person / Time
Site:	Comanche Peak
Issue date:	01/17/1983
From:	Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Johnson W, Moore T, Rosenthal A NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8301200078
Download: ML20028D910 (16)

Text

DISTRIBUTION SETurk MURothschild GSMizuno SATreby MKarman ELD FF (2)

L5thristenbury JLieberman JMurray January 17, 1983 SBurwell-316 Chron File (2)

Alan S. Rosenthal, Esq., Chairman Dr. W. Reed Johnson Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Coninission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Thomas S. Moore, Esq.

Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, DC 20555 In the Matter of Texas Utilities Generating Company, et al.

(Comanche Peak Steam Electric Station, UnTts I and 2)

Docket Nos. 50_445 and 50-446 Gentlemen:

In preparing for oral argument, Staff counsel has discovered two federal court cases, not cited in the Staff's brief, which counsel may rely upon during oral argument. They are hereby provided for the Appeal Board's information.

Sincerely, Sherwin E. Turk Counsel for NRC Staff

Enclosures:

As stated cc w/enclos: Service List DS07 c/

OFC :

_____:____________:______g_2__g_____________:____________:____________:______

DELD g

DELD g NAME : SFTurk:as : SATreby DATE : 01/17/83

01/17/83 880120 0 o7 F 6

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!EQ ASSOCIATION FOR WOMEN IN SCIENCE v. CAUFANO 339 i Nf3M

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not correct the section 73.685(b) violation, found by the Hearing Examiner and af-ASSOCIATION FOR WOMEN IN ll 'h Q firmed by the Review Board and the Com-SCIENCE, Appellant, 4 Ai*r&$

jiQWg mission.2' However, should the Commission y,

grant the translator application, thereby J seph A. CALIFANO, Jr., Secretary of

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bringing WSTE's Jimenez proposal into United States Department of Health, o M

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'k compdance with section 73.685(a),it should Education and Welfare, et al.

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consider possible waiver of subsection (b) of g

y that rule as an isolated issue. Subsection No. 75-2139.

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(a) is phrased in mandatory terms, setting United States Court of Appeals, specific levels of signal strength which District of Columbia Circuit.

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Argued Nov. 19, 1976.

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must reach the principal city. Subsection (b), on the other hand,is phrased m admom-Decided Oct. 21, 1977.

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tory terms, providing guidelines for the se-7 1

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i lection of transmitter sites which would i

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eliminate as much shadowing as possible Appeal was taken from order of the from intervening obstructions. While the United States District Court for the District I.

h admonitory language does not connote that of Columbia, June L. Green, J., denying

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pf the subsection is incapable of violation, Cen-motion to compel compliance with notice f:J,

.f tral Coast Television (KCOY-TV), Santa for inspection and copying of executed con-gh.i%

Maria, Calif.,14' F.C.C.2d 985, 991 (1968), flict of interest forms on file with the De-

, gM3 the question of substantial compliance with partment of Health, Education and Wel-its terms or waiver of its violation should be fare. The Court of Appeals, Tamm, Circuit k h NI judged by a less stringent standard than if Judge, held that: (1) since the matter h h f

it were a mandatory provision. See WJR, sought was relevant to the subject matter il J:

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[MM The Goodwill Station, Inc., 25 F.C.C.159, involved in pending action, it could be dis-

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.d4Q 189 (1958); Versluis Radio & Television, covered unless it was privileged, and the l

Inc.,19 F.C.C.1, 21 (1954). The Commis-Freedom of Information Act neither ex-

,L 4QQ sion has not had an opportunity to assess panded nor contracted existing privileges S. }i ~ $gg

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l the possibility of waiver of the subsection nor created any new privileges with respect i !,

j (b) violation as a separate issue, unaccompa. thereto; (2) the forms in question, required g

g nied by a finding of a violation of subsec-pursuant to executive order having a dis-tion (a). We therefore hold that,if WSTE's tinct statutory foundation, and thus with

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hgh y?;g "h UHF translator application is granted as a the force and effect of a statute, were remedy to the violation of section 73.685(a), reports whose confidentiality was required A

4 the question of possible waiver of the viola. by proper legal authority, thus creating

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3 tion of section 73.6S5(b) should be con. qualified privilege requiring court to bal-

,,i th sidered as a separate issue and the reasons anee the need of the litigants for the infor-h for its granting or denial clearly articulated mation possessed by the government and jm ; p '

by the Commission.

the need of the government to foster the M

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Affirmed in part and remanded in part in the.. " tant case, the balance tilted m k$

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y favor of the governmental interest in light h'{

ff j :pgg of the government's requirerrent for accu.

rate conflict of interest info mation for jgg those entrusted with recommending the al-3gg o Innemstmmy locat, ion of public funds, and there were also

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other, less intrusive means of securing the

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Affirmed.

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29. See Reply Brief for Appellant at 13 n.15.

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. '} f 2 M 1, 340 566 FEDERAL REPORTER,2d SERIES

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1. Federal Civil Procedure c=> 1572,1600.3 ployees of executive branch, and is to be L

Where party in pending action sought accorded the force and effect of statute. 5

@ 3i certain forms through discovery process and U.S.C.A. ss 301,7301; Executive Order No.

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not through a Freedom of Information Act 11222,18 U.S.C.A. 6 201 note.

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request, any matter which was relevant t

5. Federal Civil Procedure e=> 1600.3 the subject matter msolved m the pend,ng Conflict of interest forms requ. d by i

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'M' action could be discovered,.unless it was the Department of Health, Educat, ion and

• 23f privileged, and assertion of exemptions pro-Welfare w th respect to regular and special Nh vided by the Act as defenses to production g vernmental employees are reports whose h)M

,3y were inapposite, as the Act neither expands confidentiality is required by proper legal

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'd create any new privileges. 5 U.S.C.A.

aqthonty, creating a qualified pnvilege M (j with respect to which court,in determmmg Q 552(b)(4, 6); Fed. Rules Civ. Proc. rule whether to compel disclosure, must balance Shj 26(b)(1),28 U.S.C.A.

the need of litigants for mformation pos-q7.} ;,

2. Federal Civil Procedure c= 1600.3 sessed by the government and the need of

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-In addition to those privileges which the government to foster the flow of infor-

-l j are available to all litigants, the United mation provided to it. 5 U.S.C.A. { 7301; States has a number of privi!eges which are Executive Order No. 11222,18 U.S.C.A.

g]y; unique to it, including executive privilege, 201 note.

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informer's privilege, law enforcement evi-

6. Federal Civil Procedure c=>1600.3 Md dentiary privilege, and required reports, or

%d official information, privilege, more precise.

Despite relevance of conflict of interest f rms filed by special gosernment employ-MM ly termed the confidential report privilege.

^M ees in action in which conflicts of interest

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3. Federal Civil Procedure c= 1600.3 at time certain grants were awarded was M.; i For confidential report privilege to be the linchpin of plaintiff's case, the qualified Q ]j considered, confidentiality requirement confidential report privilege with respect must be statutorily based and be readily thereto was not overcome in light of the S

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'l apparent from applicable statutes and regu-government's requirement for accurate con.

lations, and it will not suffice that the flict of interest information from those en-7 7

il government has held out a report as confi-trusted with recommending the allocation y

dential or that a department head, acting of public funds; other,less intrusive means

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QQ only on general authority, has declared via of securing the needed information also ex-g regulation that reports submitted to its isted. 5 U.S.C.A. $ 7301; Executive Order hm;g agents are to be considered " confidential"; No.11222,18 U.S.C.A. l 201 note.

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" housekeeping" statute does not authorize

7. Federal Civil Procedure c=>1600.4 Nb withholding of information or records, but I

.I once confidentiality requirement is found to The confidential report privilege, like m.q 3 be statutorily based, representations made the informer's privilege, is shared by the NY by the government are significant. 5 U.S.

reporter and the government, and can be M -

C.A. s 301.

waived by the concurrence of the two hold-m ers f the pn..lege.

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4. United States c=> 2S h'

Executive order requiring that special

8. Federal Civil Procedure c=>1600.3 government employees submit a conflict of To assert executive privilege, for both gg hp.'

interest statement, listing other employ-state or military secrets and intragovern-(h i ment of the employees as well as such other mental communications, the head of the i

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financial information as the appointing de-agency involved must lodge formal claim of partment or agency shall decide is relevant, privilege, after actual pcrsonal considera-E'f; 3

has distinct statutory foundation,in light of tion of the documents in question, and the s

f statute providing for the President to pre-same strict requirements must be met to f.

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l scribe regulations for the conduct of em-claim law enforcement evidentiary privi-

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d pg ASSOCIATION FOR WO31EN IN SCIENCE v. CALIFANO 341

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p lege, but in case involving confidential re.

covery under the Federal Rules of Civil p.1, im,

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ports in a standard format, such require-Procedure. For the reasons outlined below, i

'! M F ment did not apply and confidential reports we hold that the forms are privileged, and i..MD;.

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privilege was properly asserted by United thus we affirm.

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States attorney, particularly since such "b UQ privilege, unlike others which can neither I

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be claimed nor waived by a private party, is Under the Public Health Service Act8 shared by the reporter and the government.

and appropriate departmental regulations,8 h $/h i

M it.h.rs HEW and the National Institutes of Health e

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,1 Appeal from the United States District (NIH) administer a program which provides p j !;.

yd,p, Court for the District of Columbia (D.C.

grants to educational or training institu.

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Civil 74-401).

tions desiring to work on matters relating

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to the diagnosis, prevention, and treatment Gladys Kessler, Washington, D. C., for of diseases with public health significance.8

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Grants can be awarded only if recom-Dh5 i

Judith S. Feigin, Atty., Dept. of Justice, mended by the national advisory council in Washington, D. C., with whom Rex E. Lee, each Institute of Health.4 These councils, gg6-Asst. Atty. Gen., Earl J. Silbert, U. S. Atty.,

and their var:ous committees, are composed

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and Leonard Schaitman, Atty., Dept. of of distinguished members of the medical t' yi L

7 Justice, Washington, D. C., were on the and scientific communities whose function

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brief, for arpellee.

is to exercise " peer review" over pending h'

grant applications.5

.8 4 >A. Lf Before DANAHER, Senior Circuit Judge, i

In March 1374, A%.IS. brought suit Ws and TAMM and ROBINSON, C.ircuit i.

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E directors of NIH in the United States Dis-d p

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Opinion for the court filed by TAMM, trict Court for the District of Columbia, Circuit Judge.

seeking declaratory and injunctive relief to

. 3M L gj remedy alleged illegal awarding and fund-TAMM, Circuit Judge:

ing of training grants. As pertinent here, Y

Association for Women in Science AWIS alleged that the grants were awacd-y.)g

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(AWIS) appeals under 28 U.S.C. $ I?]2(b) ed in a manner violative of the applicable si @g from an order of the district court (Green, conflict of interest standards ses forth in J.) denying its motion to compel compliance Executive Order No. 11222, 3 C.F.R. 306 i,. PF executed conflict of interest forms on file AWIS charged that individuals whose own h

with a notice for inspection and copying of (1961-1965 Compilation). In particular,

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with the Department of Health, Education applications were pending, or who were af-

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and Welfare (HEW). The principal issue filiated with institutions with applications qlhg ft on appeal is whether these forms are privi-pending, were allowed to sit on the training i.I J.T h 'lIp;} :

leged, and therefore not subject to dis-committees which initially reviewed com-Q@

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42 U.S C. (( 216. 241(d). 269c (1970 & Supp.

4.

42 C.F.R. ',64.3 (1976); see 42 U.S.C. l 289j h

( MP V 1975).

(1970). For an exce!!ent description of the lI;;3 g [Q' d,

grant appheation review process. see Grassetti ll.t

.J

-j 2.

42 C.F R. (( 64.1.8 (1976).

v. Wembergar. 408 F.Supp.142.147-49 (N.D.

pp pl Cal.1976).

dll

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The training grant program apparently was W.i '

term nated, at least in large part, by the Na.

5.

See 42 U.S C. $ 2891-4 (Supp. V 1975).

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tional Research Act, Pub L No.93-348. l 104 i

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j 88 Stat. 347 (1974). The Act, however, ex.

6.

AWIS desenbes itself as "a non-profit organi.

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pressly exempted from termination those com.

zation with oser 1500 members organized to

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O mitments made pnor to its enactment, sd.

promote equal opportumties for women to en-(;; *j> i

,. g l 6104(b). and contmued fundmg thus is asalla-ter the scient:fic professions and to achieve h's ;

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i ble for those grants awarded pnor to July 12 their career goals." Brief for Appe!! ant at 2.

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i 1974.

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.A M2 566 FEDERAL REPORTER,2d SERIES

._. m h[GM f peting applications. The Government de-would remain confidential, National

.h, j nied any impropriety in the conduct of the ParAfs) and Conservation Association v.

frf:j 'l Program.

Morton, (162 U.S. App.D.C. 223),498 F.2d 6.Y.

The discovery process established that 765 (D.C.

Cir.1974), see 5 U.S.C.

S.61 i

HEW Form 474, entitled " Confidential 6 552(b)(4) and that the disclosure of N

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Statement of Employment and Financial these documents would constitute a clear.

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Interests," the conflict of interest form re-ly unwarranted invasion of privacy, see 5

Sw.i quired of special government employees, U.S.C. $ 552(b)(6)

. T IIV g had the most complete listing of the profes.

AWIS then filed a motion for reconsidera.

sional, institutional, and corporate affiha-tions of those mdividuals sitting on the tion of the order, or for certification pursu.

h.g training committees. A notice for inspec-ant to 28 U.S.C. $ 1292(b) (1970).u Jud".

Green dem. d the motion for reconsidera

?r^ffF tion and copying of the Forms 474, pursu.

e ID a ant to rule 34 of the Federal Rules of Civil tion, but granted the motion for certifica-5,5.2N Procedure, was filed by AWIS.'

The t n."

This appeal ensued.

N' Government objected on the grounds that

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the forms were explicitly labeled "confiden-II

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$j]i' tial," were protected from disclosure by

[1] At the outset, it must be emphasized regulation, and, as personnel files, were that AWIS sought the Forms 474 through j

within exemption 6 of the Freedom of In-the discovery process and not through an pygg.,

formation Act (FOIA),5 U.S.C. 6 552(b)(6)

FOIA request. As we shall discuss below' Ah4 -

(1970).8 When AWIS filed a motion to d.kk 9'

compel compliance with the notice for in-

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the subject

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spection and copying,' the Government matter. involved in the pending action can j[d -)

8 again objected. In addition to its previous be discovered, unless it is pnvileged. The M

grounds for nondisclosure, the Government Government s assertion of exemptions 4 and Q $h]

maintained that the Forms 474 were not 6 of the FOIA as defenses to production,

'Wd subject to discovery because they were not therefore, must be read as a claim of pr,vi-i O

relevant to any issue before the court, were lege, and as such is clearly inapposite. The 0

within exemption 4 of the FOIA as " corn. FOIA neither expands nor contracts exist-2 I

mercial or financial information obtained ing privileges, nor does it create any new y

,b from a person and privileged or confiden-privileges. Chamber of Commerce of the

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tial," and were protected by the Privacy United States v. Legal Aid Society of

, " f Act of 1974, 5 U.S.C. $ 552a (Supp. V Alameda County,423 U.S.1309,1310-11,96 i'

1975)."

S.Ct. 5,46 L.Ed.2d 14 (Douglas, Circuit Jus-E Judge Green subsequently issued an or-tice,1975); Verrazzano Trading Corp. v.

f i.

der denying the motion by AWIS to compel United States,349 F.Supp.1401,1403 (Cust.

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I compliance. She stated that Ct.1972). But see Renegotiation Board v.

fM it appear [s] to the Court that the disclo. Bannercraft Clothing Co.,415 U.S.1,30,94 d

t sure of these documents would impair the S.Ct.1028,39 led.2d 123 (1974) (Douglas, government's ability to acquire this infor-J., dissenting). As intimated in its brief,"

$g )l mation in the future, and that the infor. and explicitly stated at oral argument, the I

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mation was given with the expectation it Government wisely has abandoned the v

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Record. vol.11. at $2

10. fd at 63.

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Id. at 53. The Government also maintained

11. Joint Appendoc (J.A.) at 146.

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that curriculum utae of the trammg committee t:

members had been furnished to AWIS. and

12. Id at 147.

t,

.n that this action constituted sufficient disclo.

• y sure.

13. Id at 14S.

t 9.

Jd at 59.

14. Bnef for Appellee at 7.

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NAN 3 343 ASSOCIATION FOR WOMEN IN SCIENCE v. CALIFANO

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c te as ses r.2d sas oem FOIA argument on appeal.35 Our analysis, flecting policy delibcrations. Machin v.

h,%i rr fuckert,114 U.S. App.D.C. 335, 316 F.2d QpQ therefore, will proceed based upon tradi-336, cert. denied,375 U.S. 896, S4 S.Ct.172, iri g.

tional discovery theory.

11 L.Ed.2d 124 (1963); Carl Zeiss Stiftung As mentioned above, a party "may obtain

v. V. E B. Carl Zeiss, Jena, 40 F.R.D. 318 J, M"*,Ep, discovery regarding any matter, not privi- (D.D.C.1966), affd mem. sub nom. V. E B.

tj is 4jg leged, which is relevant to the subject mat-Carl Zeiss, Jena v. Clark,128 U.S. App.D.C.

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ter involved in tie pending action 10,3M F.2d 979, cert. denied,389 U.S. 952, Fed.R.Civ.P. 26(a)(1). While the various 88 S.Ct. 334,19 L.Ed.2d 361 (1967).

discovery rules "are to be accorded a broad There are three other privileges which j

come into existence when the inquiry have been claimed exclusively by the] ((.s

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,o limitations and liberal treatment..

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E' touches upon the irrelevant or encroaches governmer.t. These privileges are based l L Tj Primarily on specific governmental inter-upon the recognized domains of privilege." ests, rather than on constitutional princi-

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Hickman v. Taylor,329 U.S. 495,507-08,67 The first is the informer's privilege,

y ples.

S.Ct. 385, 392, 91 L.Ed. 451 (1947).

rec gnized in Roviaro v. United States,353

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The relevancy of the Forms 474, only U.S. 53,77 S.Ct. 623,1 L.Ed.2d 639 (1957),

lightly challenged by the Government be-which protects from disclosure the,dentity i

low,l' is hardly open to dispute, especially f pers ns who furm,sh information to law g

I 'C'**"I fficials. The governmental p tg 4

under the liberal standard to be applied at

?"terest m this mstance is the protection of j4y pg the discovery stage." The existence of con-flicts of interest a4 the time training grants the fbw of information concermng possible

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were awarded is the linchpin of the appel-vi lati ns f the law. The second privilege

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n h e lant's argument, end it is difficult to imag-is the law enforcement evidentiary privi-

.me anyth.mg more probat.ive of this issu lege, Black v. United States,184 U.S. App.

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than the Forms 474. The sole quest,on t D.C. 46, at 56-62, 5M F.2d 531, at 541-i 9 d ' f ![

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be answered, therefore, is whether the 547, No. 75-2039 (1977), which is based pCf forms were privileged.

primarily on the harm to law enforcement

[2] In addition to those privileges which efforts which might arise from public dis-p l 4fC

! ' i d 3.7 "3

are available to all litigants, the United closure of government investigatory files.

l States has a number of privileges which are The third privilege, with which we are con-1 I g

.e unique to it. Chief arr.ong these is execu-cerned in this appeal, has been called both tive privilege, the chim of which has consti-the required reports privilege,is and the of-l :y tutional underpinnings. United States v.

ficial information privilege.88 This privi-

] M st%-pf i M W MHQ' Nixon, 418 U.S. 683, 703-06, 94 S.Ct. 3090, lege, Black v. United States,184 U.S. App.

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41 L.Ed.2d 1039 (1974). The Supreme D.C. 46, at 56-62, SM F.2d 531, at 541-9 0 - 9 t't Court has recognized this privilege for doc-547, No. 75-2039 (1977), which is based uments that contain military or diplomatic it has received from citizens. It is directly

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secrets, United States v. Reynolds,345 U.S.

analogous to the informer's privilege, for it

.j deliberations of high executive officials, protecting the flow of information concern-

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i 1,73 S.Ct. 528,97 L.Ed. 727 (1953), or the is based on the governmental interest in k, h.;

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@ WE United States v. Nixon. Lower court deci-ing the subject of the report in question.

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Because the terms " required reports" and sions have also recognized executive ptivi- " official information" are somewhat broad 1,

lege for intra-governmental documents re-

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J See Note. The Required Reports Privilege, iW/.

18.

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15. The Government also dvs not urge its Pn-M 56 Nw.LRev. 283 (1961).

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vacy Act argument in this app *al. since the Act was not in effect when suit was filed. See id.

See Note. Discovery of Government Docu-

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at 16-17 n.17.

ments & the OfficialInformation Prinlege,76 f[H h. >...

Colum.LRev. 142. 149--52 (1976).

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16. Record, vol. II, at 63.

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17. Sac C. Wright & A. Miller. Federal Practice i

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i C /,J and Procedure { 2008. at 41 (1970).

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M4 566 FEDERAL REPORTER,2d SERIES f

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i M

in their import," however, we prefer to use action by the President in this instance has l

7 { ]g a more precise expression-the confidential a distinct statutory foundation; indeed,it is report privilege-in our analysis.

to be accorded the force and effect of a

[3] For the confidential report privilege statute. Tarkas v. Texas Instrument, Inc.,

E even to be considered, the confidentiality 375 F.2d 629, 632 & n.1 (5th Cir.), cert.

WMJ e

b ? "; f requirement must be statutorily based. It denied, 389 U.S. 977, 88 S.Ct. 480,19 will not suffice that the governrnent merely L.Ed.2d 471 (1967); see Old Dominion l

' %q :.

has held the report out as confidential, by Branch No. 496, National Association of marking the report form " confidential," for Letter Carriers, AFI,-CIO v. Austin, 418 g%g4 g"

example." See Aekerly v. Ley,137 U.S.

U.S. 2M,273 n.5,94 S.Ct. 2770,2776 n.5,41 g>g i App.D.C.133,136-7,420 F.2d 1336,1339-40 L.Ed.2d 745 (1974) (an executive order such gj ;

n.3 (1969). Similarly, the privilege will not as this "is plainly a reasonable exercise of gg't be called into play simply becaux a depart-the President's responsibility for the effi-M'rd g i

ment head, acting only on general authori-cient operation of the Executive Branch").

M<

ty, declares via regulation that reports sub-Similarly, t.ne regulat. ions issued by the

.W % a mitted to his agency are to be cons.dered m

CSC and HEW are based on the executive D[Y

" confidential." Cf. 5 U.S.C. l 301 (1970) rder and on the President's statutory au-M'

'I

(" housekeeping" statute does not authorize thon,ty to delegate appropriate funct,ons to i

-M withholding of information or records).

his suboJinates. 3 U.S.C. $ 301 (1970).

e f[.'M L

[4] The specific legal autho-ity for con. The key point to be made here is that the gj:

fidentiality in this case is Executive Order agency regulations derive not from the gen-g ::

ho.11222, supra (the same document upon eral "housekecping" statute,5 U.S.C. 6 301 g,j.

which AWIS bases part of its claim), which (1970), which was formerly a " reliable road-gy prescribes standards of ethical conduct for block to discovery,"8 but from an execu.

qg governn.ent officers and employees. This tive order with the force of law. With q

executive order has as a significant part of these considerations firmly in mind, we pro-3 q

its statutory basis 5 U.S.C. 5 631 (19M), ceed to an examination of the language of WA which was concerned pnman,ly with stan-the execut.ive order and regulations.

p.xr5 l

dards of conduct for Civil Service Commis-pk ]

sion (CSC) employees. See Exec. Order No.

Part III of the executive order prescribes W

11222, 601,3 C.F.R. 306,310.22 One year standards of ethical conduct for special E$O after the executive order was issued, a new government employees and requires that 4*

l5 title 5 of the U.S. Code was enacted,23 and each special employee submit a conflict of p

section 631 was rescinded and replaced in interest statement.as. This statement must Q

part by a new section 7301. This section list all other employment of the employee, 0

t; states simply: "The President may pre-as well as "such other financial information h[*~

scribe regulations for the conduct of em-as the appointing department or agency l

ployees in the executive branch." Thus, the shall decide is relevant in the light of the T[#7Mj

20. Use of the term " official informatior. de-ton 162 U.S. App.D.C. 223, 226, 498 F.2d 765.

g i

rives largely from its mention in the proposed 768 (1974).

f.

rule 509 of the Federal Rules of Evidence. 56 F.R.D.183. 251 (1973). As used in ; hat rule,

22. Also used as statutory authority were 18 4.n.

j

' d.]i; l

however, cfficial information included intra-U.S.C. $$ 205, 20S(b) (1970). See Exec. Order i

governmental opinions or recommendations No. I1222. $ 502,3 C.F.R. 306. 310 (1964-1965 L

h1 and investigatory files, as well as the type of Compilation). See genera @ 18 U.S.C. $ 201 l.

l' confidential reports under sc utiny here.

note (1970).

21. Once the confidentiality requirement is

23. Act of Sept. 6.1966, Pub.L No.89-554, 80 g

l found to be statutonly based. however, the Stat. 524 (codified at 5 U.S.C. (1970 & Supp. V representations made by the governmer.t are 1975)).

h

?

significant, because the pubhc should be able to I

T expect its government to honor obligations

24. See 76 ColuntLRev., supra note 19, at 148.

w made to induce full and accurate information.

['

See Nat'l Parks & Conservation Ass'n v. Sfor-

25. Exec. Order No.1I222, supra note 22. $ 306.

l l

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ASSOCIATION FOR WOMEN IN SCIENCE v. CALIFANO 345 s

l Cite as 566 F.2d 335 (1977)

. *W

".has duties the appointee is to perform." 2' Part nandal statements of its regular 82 and spe-Ph

, it is IV of the executive order, which requires cialu government employees. The regula-l 'g fa reporting of financial interests, does not tions state specifically that, in the case of O

Inc.,

apply explicitly to special government em-special government employees, "[a] confl.

.t i%

cert.

.l M ployees, but it does empower the CSC to dential file of completed statements of em-

',,19

" prescribe regulations, not inconsistent with ployment and financial interests shall be

.Q this part, to require the st,bmission of state-maintained

." 82 Review of the 1 M cmon G of ments t,f financialinterests bysuch employ-executive order and appropriate regula-i l j $

418 ees, subordinate to the heads of agencies, as tions, therefore, convinces us that the

& il 3, 41 the Commission may designate."" Fur-Forms 474 are reports whose confidentiality

!h l JNJJ such ther, in unequivocal language, this same is required by proper legal authority.84

e of part directs that:

i 44 However, we do express concern about

ho' y'. M>

effi-The statements and amended state eh,,).

ments required by or pursuant to th.-

the length to which one must go to reach

.q is EE this conclusion with regard to these forms.

O

?

the part shall be held,m confidence, and n b U

'}d i N For the confidential report privilege to be itive mformatwn as to the contents thmot invoked, the requirement of confidentiality au-i shall be disclosed except as the Chairman ia ?i n

must be readily apparent from tae applica-q; t..ue of the Civil Sem.ce Commisswn er the

'{ T s to Me statutes and regulations. In this case, 1

40, head of the agency concerned msy deter-while there are many references to confi-4 Y.,

5 the l

mine I e gM cause shown.3 dentiality, the language used for regular E j.h }

7en.

Pursuant te the executive order, the CSC government employees is far rnore explicit c h '!h 301 issued regulations requiring employment than that used for special government em-

~

iM I 3ad-and financial statements from all govern-ployees.

We believe this shortcoming ecu.

ment employees, including special govern-springs from the inconsistent and awkward iN[

lith ment employees." These regulations dire-t k

construction n' Executive Order Im and f

pro.

j that "[a]n agency shall hold each statement we suggest that now might be an appropri-W h8i of employment and f,nancial interests, and ate time to consider publishing a new exec-

• " 5T

,of i

each supplementary statement, in confi-utive order on standards of ethical conduct,

.b.

I 7M dence.

An agency may not dis-with its authority squarely based on 5

!h6 M

close,nformat,on from a statement except U.S.C. 6 7301 (1970). In view of the events E

i i

cial as the Commission or the agency head may in recent years, and the current Adminis-M 16 hat determine for good cause shown.""

m.3m 4,ggga t..g 3

ust

[5] Under the authority of the executive the appearance of impropriety by govern-(

QS order and CSC regulations, HEW issued ment employees, there is little doubt that

.j, g

..e,'

. ion regulations requiring employment and fi-some improvement can be made in the 4d

'ncy

26. Id.

33. Id. $ 73.7351203(e)(emphasis added).

$ Ti I

.3 ahe

,1

v. '

27. Id 402 (emphasis added).

34. It is interesting to note that not only the hlj 2.-

163 consultants and the Government relied upon

28. Id j 405 (emphasis added).

the confidentiahty of the Forms 474. At an lii A

carlier stage in the proceedmgs, when AWIS

'!l.

[4* ' J 18

29. See 5 C.F.R. (( 735.401.412 (1977). Sub-was seekmg the curriculum utae it later re-l Or section 735 412(a) directs that [algency regu-ce ved. counsel for AWIS stated:

6 f('

.o g

lations issued under this subpart for special There is a document which we would con-

i'

?01 Government employees, as a minimum. sha'l cede is confidential and haven't asked for.

i. ' i.

.f contain provisions covering the reporting re-5 quirements set forth in this section [for all namely, after peopk are appointed, they do p

have to submit on-I thmk it is HEW form 60 other employees).-

g 474--conflict of interest dates but that is

.V

.p

30. Id $ 735 410.

confidertial under HEW regs. and whether h

[

they are right or not. we certainly can get all y

L

. d, h,., j

31. 45 C.F.R.

65 73.73b1001 to.73%1005 we need from the cumculum utae informa.

p (1976).

tion which was submitted.

y

- i.

Transcnpt of Proceedings July 10,1974. at 36.

E

32. Id {l 73.7351201 to.735-1209.

l i

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566 FEDERAL REPORTER,2d SERIES

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twelve-year-old document upon which cur-such force as to dominate the broad objec-se<

i rent regulations are based.u tive of doing justice."

,,.h 5

Determining that these forms are confi-

[6] We agree with Judge Green that I*'

Q dential reports is but a first, albeit impor-this high standard has been met in this E

ta

y. -J l

tant, step. The legal authorities which cre-instance, and that the balance tilts in favor E

ate the confidential report privilege divide of the covernmental interest. We recog-at h,k nize the need of AWIS for the type of into three categories. The first type ex-information contained in the Forms 474, but pressly privileges documents from disclo-as we shall discuss below, there may be 41 Nb sure in judicial proceedings,u and may re-a5 9;b sult in a complete bar to discovery.87 Tb other,less intrusive means of securing that information. Even if there is not that q-It CQ-second type specifically provides that confi. Portunity, however, we believe that the ili At dential reports must be furnished to a re-Government's requirement for accurate b:

questing court.se The third, and largest conflict of interest information from those U

category is composed of authorities such as entrusted with recommending the allocation li 2

2.' '

those in issue here, which bar disclosure of public funds is the more compelling need.

71 i

without specifying from whom they are to Disclosure of the Forms 474, as Judge a'

13 Y'

be withheld.n Green noted, very likely would impair the In our view, author.tles of this third type Government's ability to acquire this infor-11

.ti.

t.

Jg-(

create a qualified privilege, analogous t mation in the future, for "[h]uman experi-u g'y that recognized m Roviaro v. United States, ence teaches that those who expect public tj 353 U.S. at 62, 77 S.Ct. 633." Thus, in dissemination of their remarks may well a

h, f,

determining whether to compel disclosure, a temper candor with a concern for appear-court must balance "the need of litigants ances and for their own interests..."

j t

for information possessed by the Govern-United States v. Nixon,418 U.S. at 705,94 1

. g;l ment and the need af the Government to S.Ct. at 3106. In the absence of a promise 1

[ $

foster the flow of information provided to of confidentiality upon which they can rely, 1

t A L

it."

Westinghouse Electric Corp. v. City of significant numbers of individuals might g(

l Burlington,122 U.S. App.D.C. 65, 72, 351 not apply for governmental positions, or j

d,y F.2d 762,769 (1965); see McKillop v. Re-perhaps worse, might apply, but fail to dis-gents of the University of California,356 close information which could give evidence

)

L F.Supp.1270,1274-78 (N.D. Cal.1975). We of a potential conflict of interest. At a pj are also mindful of the admonition of this time when public confidence in the institu-j g'y court in Freeman v. Seligson,102 U.S. App. tions of government has been sharply erod-43 D.C. 56,78,405 F.2d 1326,1848 (1968), that ed, it is imperative that the Executive-in-

)

y

?',d

"[t]he principle favoring full access.

decd all branches of government-be per-to relevant information, in the absence of mitted to utilize every possible means to l

strong competing considerations, is an im-prevent further erosion. Information con-

%(M portant foundation for the achievement of cerning potential conflicts of interest is in

@d justice

[and] clear and strong every measure as important as the informa-indication is required bs.%re it may be im-tion. n potential violations of the law ree-plied that the policy of prohibition is of ognized in Roviaro. The hardship to indi-f.g a I

37. See C. Wright & A. Miller, Federal Practice

35. See generally H.R.1, 95th Cong.,1st Sess.

2-S. 555. 95th Cong.. Ist Sess. (1977).

and Procedure $ 2019. at 160 (1970). But see

~"

(1977);

76 Colum.LRev., supra note 19. at 150.

M1

38. See. e g., 45 U.S.C. $ 41 (1970) (railroad

38. Sec. e.g. 8 U.S.C. $ 1202(f) (1970) (State i

7 accident investigations); 49 U.S.C. $ 1441(e)

Department visa records); 38 U.S.C. $ 3301 See

'd I

(1970) (rederal Aviation Act records).

(1970) (Veterans' Administration records).

also St. Regis Paper Co. v. United States. 368

/ '

• J U.S. 208. 218. 82 S.Ct. 289. 7 led 7d 240

39. See. e.g. 42 U.S.C. $ 1306(a) (1970).

y (1961).

N"

40. See McCc.rmick on Evidence $ 112. at 238-39 (E. Cleary ed.1972).

g{

Q g

-c7,.

2k N

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o T.

N.%

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ASSOCIATION FOR WOMEN IN SCIENCE v. CALIFANO 347 I

g'.o l

Cite as s44 F.2d 339 (1977)

g..

bjec-vidual litigants which results from the as-rather broadly phrr. sed."

Because there

.l,'Q sertion of privilege in tha.se instances is, in may be a natural suspicion on the part of Ii that our view, outweighed by "an interest legis-consultants who are queried by AWIS, how.

C

~ j$'

i this latively or judicially deemed more impor-ever, we direct that the trial judge require b

11-(

tant to society as a whole." Freeman v.

HEW and NIH to request waiver by the y -',$

'cvor Seligson,132 U.S. App.D.C. at 78, 405 F.2d individaal consultants, indicating: 1) that q d%

scog-

, of at 1348 n.124 (Robinson, J., dissenting).

the Government has no objection whatsoev-1 ';$

I

,but

[7] Even though disclosure of the Forms er to the release of this information, and,in d. h.A y be 474 cannut be compelled, AWIS still may be fact, encourages it;'5 2) that the Forms 474

[g th:t able to acquire the information it desires. have already been screened and show no 4 3.g t op-It appears that the confider.tial report priv. evidence of conflict of interest;" 3) that (ll g

' the ilege,like the informer's privilege,is shared release of information will in no way jeop-y q

i]; jyf(

tr:ta by the reporter and the government. See ardize one's position as a consultant; and 4) hose Westinghouse Electric Corp. v. City or Bur-that the data will be used only in this Q

stion lington,122 U.S. App.D.C. at 71,351 F.2d at Proceeding and in the most limited manner

. h..*

ieed.

768; cf. Roviaro v. United States,353 U.S.

Possible. In this way, AWIS may obtain

r Jdge j

at 59,77 S.Ct. at 627 (" informer's privilege most, if not all, the information it seeks,

(( if the is in reality the Government's privilege"). without adversely affecting the governmen-

' 'q. g$g

.y

,for-In this case, the Government has agreed to tal interest detailed above.

aeri-waive its " share" of the privilege,82 and

~

iblic l

thus AWIS can obtain the Forms 474 from

[8] One last issue, which was not raised

% %e

' 1g l

any consultant willi::g to release his or her below or on appeal, is whether the confiden-

, +,

well form. See Brockway v. Department of the tial report privilege was properly claimed in hp. y'51 y

. ear-Air Force, 518 F.2d 1184,1186 (8th Cir. this instance. To assert executive privilege, en y

L,94 1975); Rabbitt v. Department of the Air for both state or military secrets and intra-

[

p

'lin Force, 401 F.Supp.1206,1209 (S.D.N.Y.

governmental communications, the head of

. j

[{g:;

ely, l

1974),

the agency involved must lodge a formal l't K

'ght In response to a questionnaire sent by *laim f privilege, after actual personal con-t AWIS, sixty-two out of seventy-six consult-sideration of the documents in question.

4 i

ants-over eighty percent-indicated that nhed States v. Reynolds, M5 U.S. at 7-8, n

they would not object to making public 73 SA 528; Carl Liss StUtung v. E E. B.

e their professional affiliations and financial Carl kiss, Jena, 40 F.R.D. at 326 & n. 33.

[ @.

I holdings." Since AWIS intends to use the The same strict requirements must be met Y

information obtained in statistical extract to claim the law enforcement evidentiary

. S t j form-c.g., X percent of Y training com. Privilege. Black v. United States,184 U.S.

j with Z institution-it appears that suffi-543-544, No. 75-2039 (1977).

} y

. g%

mittee was composed of persons affiliated App.D.C. 46, at 58-59, SM F.2d 531, at fi,

?

?

I cient data can be accumulated to produce a In the instant case, the confidential re-

!.h reliable sample. It is also noteworthy that port privilege was claimed not by the Secre-

, [L @3f y

Q,t AWIS has pledged to use the information tary of HEW, but rather by the U.S. Attor-Q ec.

Sl rp [

di-btained only for purposes of this lawsuit ney for the District of Columbia." Never-M.g and in the most limited manner possible." theless, we believe the privilege was proper-j f

$'pR ico If this fact is conveyed to the ir.dividual ly asserted. Unlike state or military se-t gi t

consultants, the waiver rate may be even crets, intra-governmental communications, j p< f M]i higher, since the first questionnaire was and most law enforcement evidentiary files,

q prg; ate

~.

y 01 l

41. Brief for Appellee at 16-17.

45. Brief f ar Appellee at 14-17.

j

{ ',4 k[G 4

42. Brief for Appellant at 22.

46. See 45 C.F.R. 6 73.735-1203(d)(1976); Brief 7;

'( M for Appellee at 5.

j{

H

}

43. Id at 8-9.

b g; qj]g i

47. Recond. vol. II. at 53.

44. fd at 22 n.11.

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O MS 566 FEDERAL REPORTER,2d SERIES

d the confidential reports filed here are a'.1 in seeks," without adversely affecting the

.,H

1. Lai 4

a standard format," and little, if anything, Government's ability to obtain this informa-V n

could be gair.ed by having the Secretary of tion in the future.

had ri HEW review each Form 474 before clai*'

Mrmed.

porar.,

2 ing the privilege. The situation here is specif d

much more analogous to Roviaro v. United union States, where an objection by the Govern-

, 6,t,,g 7(

ment, when asked to supply the name of contra f

=

[

were the informer, apparently w s sufficient to q

claim the informer's privilege. 353 U.S. at tempc h

tract N

55, 77 S.Ct. 623.

INTERNATIONAL BROTHERHOOD OF tractc.

r,J Th.is result.is not. inconsistent with Reyn-ELECTRICAL WORKERS, LOCAL UN.

t7 ev olds, because a key factor m that decision ION NO. 501, AFleCIO, Petitioner, been W;;

was that the pr..lege.n quest. ion, like the ivi i

gainir v.

9 privileges for intra. governmental communi-subco.

d cations and law enforcement evidentiary NATIONAL LABOR RELATIONS futuri Q

files," belongs to the government and must BOARD, Respondent.

power 4

be asserted by it; it can neither be claimed h.o. 75-1160.

g g(t

.j nor waived by a private party." 345 U.S. at 5 15s; 7, 73 S.Ct. at 532 (footnotes omitted). As United States Court of Appeals,

'.ya we discussed above, however, the confiden-District of Columbia Circuit.

2. Lal Il tial report privilege and the informer's priv-Argued Oct. 5,1977.

k,4 ilege are shared by the reporter and the bI*

Decided Nov. 11, 1977.

government, and can be waived by the con.

• (RI currence of the two holders of the privilege.

For this reason, and because review by the Union sought review of National Labor the ec Labor H ;l Secretary of HEW would be of little or no Relations Board determination. The Court 3 j benefit, we believe the claim of privilege of Appeals, Bazelon, Chief Judge, held tht:

amen <

d I

was properly asserted by the Government's (1) right of control over assignment of job

3. Lal

$ 1 objection to the notice for inspection and of operating temporary power at construc-3 t'

copying."

tic.. 'te belonged with contractor and not sough

$ li 4

III with subcontractors; (2) subcontractors er wi were unoffending employers even though contra k I For the foregoing reasons, we hold that they had entered into contracts giving the stricti the Forms 474 sought by AWIS are privi-e ntractor the right to control operation of fendir 3

i leged, and hence we affirm Judge Green's temporary power despite collective bargain-in wit 9

denial of the motion to compel compliance ing agreement between the subcontractors site b I l, with the notice for inspection and copying and the union which gave that right to given 5

of the forms. We direct, however, that the union members, and (3) actions of union in as ca Government make a concerted effort, as withdrawing its members from the jobsite contri outlined above, to secure waivers from the d

in a dispute over the operation of tempo-secon E

individual consultants. In this manner, we rary power was illegal seu ndary activity.

tions intend that AWIS be able to receive a sub.

J ',.

U.S.C stantial portion of. the information it Enforcement granted.

48. It may be that, in future cases. some confi-Colum.LRev supra note 19. at 166-67; 56 g

e j

dential reports are not in a substantially stan-Nw.LRev.. supra note 18. at 300-01.

de y

dard format. and indeed may be more similar to the law enforcement evidentiary files discussed

50. Counsel for AWIS may also wish to supple-

4. Lal I

in Black. In those cases. personal review by ment information received from the Forms 474 the agency head may be required.

with information that could be obtained subco j

through the use of carefully constructed inter-

49. See Rule 509(e). Proposed Federal Rules of rogatories, as we suggested at oral argument.

I. SG Endence. 56 F.R.D.183. 2%1-52 (1972); 76 It I

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UNITED STATES v. LONG 505 d

4 che u sss r.24 ses <is7s>

i simply accepted an assignment of As the district court erred on the law by fy L

iN Crown's interest in the said security con-concluding that the TPD constituted usuri-h.,

g ous interest, we need not consider any of I

tract.

F' M{

$$j Finding of Fact 29: Title to the personal the other issues raised by the parties.

E property, the subject of the Application Reversed and remanded.

t d to Reclaim and referred to in said Securi-I ty Agreement, is vested in T. R. Axton, M

EK Sr. Corporation, the Debtor in these pro-ceedings.

, hlI

!, y Despite the absence of an explicit find-ii fjL

.J ing, we deem it significant that the referee referred to the " agreement for installation ii j

{p](.y y

! j, WM$ j g4(4[p and furnishing" and the " contract", not the

" loan," in the conclusions quoted above.

UNITED STATES of America,

[' i j From Finding of Fact 29 it is clear that Plaintiff-Appellee, 5 ! l' E,%D W@

ii,

' Y. a M5 property was transferred from Crown (the P

e.

Lhl

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q v,

seller) to Axton under the contract, sug-

'f j

J hn Henry LONG, Defendant-Appellant.

g [' ' f,

gesting that the transaction was a bona fide conditional sale.

No. 74-2536.

$l Ih b Ep-

U 5, N t-i %vx From the transcript of the district court United States Court of Appeals, "T

n m-( W _N assumed the existence of a bona fide con-

. h Ili hearing it is clear that Judge %. estover

'y Ninth Circuit.

i p'

p-tract for the sale and installation of restau-April 5,1976.

u,'

dI 2i e

rant equipment. Indeed, he analogized be-Rehearing and Rehearing In Banc ih

[

. [. I I tween the transaction in d,spute and the Denied May 17, 1976.

i sf,k. i:;

gl(

f s

i installment purchase of an automobile.

l lI He identified the "real issue" as "whether or not time price differential is interest."

Defendant was convicted in the United i i..l ;t hn E

i b@!

[R.T. 22] He went on to suggest:

States District Court for the Western Dis-Let the Circuit decide whether or not trict of Washington, Morell E. Sharp, J., of P h' 1 -

N there is a difference between interest and selling cocaine in violation of statutory pro-j y, fy a

g (J f

time [ price) differential, scriptions, and he appealed. The Court of l

' g y'

f

[lp.

&[

}

It seems to me that both of them are Appeals held that trial court could conclude s

for the use of money, and it all that informer privilege continued to serve

[

M n

its intended purpose despite transmittal of g]

amounts to the same thing.

M l4 b ;.. $. bg informant's name to defense counsel, that L

b; W

l

[R.T. 44-45] The district court,s implicit in camera proceed.mg adopted by court to 1

.a d

holding was that, desp.te the existence of a aid it in determining whether government y

[jN

• E i

bona fide conditional sales contract, time interest protected by privilege cutweighed l

1 M'

]f f. }.i price differential is the same as interest and defendant's right to prepare his defense i

l therefore subject to California's usury laws. was not improper, that even if privilege l

.l

{ef. *k "y

[3] Our review of the entire record ended with disclosure of informant's name leads us incluctably to the conclusion that to defense counsel, error, if any, in prevent-I presented, together with the implicit find-doubt, and that Government was not re-f

' {,

$ ]

"2 here, as in ranish, there was no genuine ing defendant from using informant as a issue of material fact. All of the evidence witness was harmless beyond a reasonable j

i I

3e Q i

~

ings of the district judge rd the referee, quired to produce informant once defendant N'q.' g

$g suggest that the subject transaction was a testified that substance sold to agent was t

i I

hona fide conditioral sale, not a loan. We provided by informant, was only required to

, i

"M so find.

go forward with sufficient evidence to con-i l

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I*')b 506 533 FEDERAL REPORTER,2d SERIES h

$)

tr:. dict hfendant's testimony as to source

5. Criminal Law e==788 g

of contraband.

A rosing witness instruction is proper E

A7 Affirmed.

only if from all the circumstances an infer-Jud M

ence of unfavorable testimony from absent M

witness is a natural and reasonable me.

P

1. Witnesses c== 216 N-[

Once it had been established that infor-

6. Criminal Law e==788 T

a N/

mant had been involved in eight or ten Refusal to instruct jury that failure to transactions invohing a distinct clique of Produce a material witness peculiarly with-3@d participants in drug traffic in area, that in control of a party creates a presumption

($

those in clique he had exposed were aware that absent witness's testimony would be of his role, whereas members of a much adverse to that party was not error where I-k('-

larger group were not, and that informer witness was absent in part because court that feared that if he appeared at trial as a had concluded that his testimony would not sub; k.h, government witness his role as an informer be favorable to defense, forr g

would be established with latter group as

7. Criminal Law c=>721%(1) g well, trial court could properly conclude Rule that counsel should be permitted j

that micrmer privilege contmued to serve to comment on absence of witness was not t

e

.e;,

its mtenced purpose despite transmittal of violated when court told jury that infor-informant's name to defense counsel.

mant's absence resulted from an order of 5

2. Witnesses e== 216 the court and that neither the defendant ney' 3'

In camera proceeding adopted by trial nor the Government was responsible for cour court to aid it in determining whether informant's failure to testify, where court the M

government interest protected by informer did not forbid all reference to absence of was N

privilege outweighed defendant's right to informant, but simply gave jury informa-vo]y P

prepare his defense was not improper, not.

tion it needed to evaluate any comment reve withstanding that informant's testimony that might be made, and to avoid being ever

@+s would have been critical if it had corrobo. misled.

wo.2 b,

rated that of defendant, where testimony of

8. Witnesses o=216 aske

,.h the government agent to whom both sales in c The Government was not required to were made was essentially the same as the Raw e

produce the mformant once the defendant

. formant's in camera testimony and, to the dete y

m testified that the substance sold to the c

extent that it was not cumulative, the m-vant x,

agent was provided by the m. formant, but r

dH formant's testimony was adverse to defend.

pella was only required to go forward with suff.i-

@g i

ant in every respect.

cient evidence to controvert defendant's y@'.

the

3. Criminal Law e==ll70%(1) testimony as to source of contraband.

.a,

had g

Even if the informer's privilege has

9. Drugs and Narcotics e==128 schei di ended with the disclosure of the mformant's Once Government offered evidence agen name to defense counsel, error, if any, in e

which, if true, would have made it impossi-mshs

r. c.

preventing defendant from using informant ble for defendant to have obta.med sub.

buye t;'

e as a witness was harmless beyond a reason-L<

stance from m. formant as he testified, a man <

r able doubt, where.m camera transcript g,d question of fact as to scurce of cocaine was or st d

demonstrated that testimony of m. formant presented for jury to resolve.

ID ca

• L would have been consistent with that of y

couri M

government agents,largely cumulative, and ticip; adverse to defendant to extent that it was p[f/

not cumulative.

Ivers, Jensen & McAteer, Seattle, Wash.,

via James F. McAteer (argued), of Lenihan, appe y

k

4. Criminal Law c=>1170%(1) for defendant-appellant.

h Error resulting in unavailability of a Stan Pitkin, U. S. Atty. (argued), Seettle,

• H' W

witness is subject to harmless error rule.

Wash., for plaintiff-appellee.

c

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.'l Ai UNITED STATES v. LONG 507

!l I? Fp.

Cite as $33 F.2d ses (1976) i

j y f_E

,i OPINION which the court would ask the informant in j.

df; Before BROWNING and TRASK, Circuit the absence of both counsel. This was

, I : jl pd %

l

+

done. After the m camera interrogation, Judges, and JAMESON,' District Judge.

p the court stated it was convinced that the PER CURIAM:

informant's testimony would not be harm-it;{ @M :GM2 i

• pi fp This is an appeal from a conviction under ful t the government or helpful to the I!d

[.q 9

,, {! j :

j an indictment charging Defendant-Appel-defense and would be cumulative of other j. l; lant.'ohn Henry Long with two sales of evidence. The court concluded that there i q',t'bll' @

' g,y cocaine in violation of 21 U.S.C.

841(a)(1). was w, satisfactory showing that it was We affirm.

necessary to have the i; formant testify or M;#r' yf ly that appe mt would be prejudiced if he did f9 1 {'l *1 1.

Appellant,s pn.napal content. ion is P

that the tnal court erred in quashing a Balanc.,g these cons.derations against not.

i

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subpoena served upon the government,s in-the government,s. terest.in protectm.g the o

1 in ry%. w 5:

I t % T:n formant.

informant, the court concluded that the r-

%F i

subpoena should be qer.shed.

,4:

%,, w.p;-

f The governmer.t prov, dad appellant with I-pg.: Q<

the name of the informant but not his Appellant points out that in both United i

w hereabouts. Appellant subpoenaed the in-States v. Rawlinson, supra, and United I

.d{[j %g formant pursuant to Federal Rules of Crim-States v. Alvarcz. 472 F.2d 111 (9th Cir.

g inal Procedure 17(b). The informant was 1973), the question was whether the govern-M y@

served while in the United States Attor-ment should be required to disclose the

$ Ms I

ney's office to be interview (d by appellant's identity of a confidential informant, and

- l ZI@

counsel The government sought to cuash argues that in this case the government ppi the subpoena asserting that the informant revealed the informer's identity and thus

'l s ej Jg was (1) ill, (2) in fear for his life, (3) in-waived the privikge. Absent the privilege, I'

t volved in other investigations that might be appellant argues, the right to compulsory l

q}!

i revealed if he testified at trial, and, in any process guaranteed by the Fifth Amend-

{

.n!

event,(4) not possessed of information that ment gives appellant the right to select the

.ti

,p i ll L4l

{

s would assist appellant. The government witnesses he will present (including govern-asked the court to interview the informant ment informers, see United States v. God.

, ; }t '

in camera pursuant to United States v.

kins, 527 F.2d 1321,1826 (5th Cir.1976);

l-3 h

?

i Rawlinson, 4S7 F.2d 5 (9th Cir.1973), to United States v. Davenport,312 F.2d 303, y

4 y

i: i( h. f.d determine if his testimony would be rele-305 (7th Cir.1963)), and the court may not

[h O

vant to the defense. The court asked ap-conduct a pre-trial review of the testimony ii, jjf, pt% %

j; pellant's counsel why he n&ded the infor-of those witnesses and bar those the court l'..; ["

L y

mant's testimony. Appellant's counsel told thinks will not be helpful to the defense.

,qp the court, in camera, that the informant i

,P' t,

f had induced appellant to enter into a

[1] In Roviaro v. United States,353 U.S.

'{l

'j]; QJ. y y

scheme to defraud the buyer (a government 53, 60, 77 S.Ct. 623, 627,1 led.2d 639, 644 j,

g 3ly- %k b y

agent) by selling him a white powder, fur- (1957), the Supreme Court stated that "once

' y%M ki nished by the informant, represented to the the identity of the informer has been dis-

i 'h buyer te be cocaine but which the infor. closed to those who would have cause to t

mant told appellant was in fact baking soda resent the communication, the privilege is y^t k or sugar. The court decided to conduct an no longer applicable." The Court of Ap-1 l h;.fj j' in camera interview af the informant. The peals for the Fifth Circuit recently held t

&i -

court offered to allow both counsel to par.

that this means that a defendant may not

?%

i ticipate. To avoid revealing the defense, be barred from subpoenaing "any witness E

l 4

appellant's counsel agteed instead to inter-already known by him." United States v.

U b 3 (.j siew the mformant and submit questions Godkins, supra. No doubt this is the gener-

'l ht@ @E.

U,;p ; sc

• Hencrable Wilham J. Jameson Semor Umted States Distnet Judge. District of Montana. sit-L k

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tmg by designa'on.

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• w 508 533 FEDERAL REPGRTER,2d SERIES W'

.g al rule. Ordinarily, the defendant will be record, including the transcript of the in the only person "who would have cause to camera proceedings, we are unable to say

,M.; p[

resent the communication"; and if the de.

the trial court erred in striking the Roviaro N@

fendant knows the identity of the infor. balance. It is true that the informant par.

Qh mant, the purpose of the privilege "to main-ticipated in the transaction, and his testimo.

%CM4 tain the Government's channels of commu-ny would have been critical if it had corrob-(

nication by shielding the i ntity of an in-orated that of appellant. On the other L

F[

former from those who would have cause to hand, the informant was not the only wit-f:

1 resent his conduct" (Roviaro v.

United ness to the actual sales, and the testimony

?

States, supra,353 U.S. at 60 n. 8,77 S.Ct. at of the government agent to whom both d

627,1 L.Ed.2d at 645), can no longer be sales were made was essentially the same as l

DS accomplished. But this is not always true. the informer's in camera testimony. To the

$f Persons other than the particular defendant extent that it was not cumulative, the in-(

~* }ap may have cause to resent the informant's former's testimony was adverse to appel-c conduct, and disclosure to the defendant lant in every respect. The informer had I$

alone may not be equivalent to disclosure to been productive in a large number of inves-ge these other persons. The in camera interro. tigations. His exposure would not only end v

yp.J gation cf the irformant indicated that this that cooperation, but, in all probability, a

fiI was the situation in the present case. The wou!d discourage communications from oth-5 13) informant had been involved in eight or ten ers as well. The risk from further disclo-y,

%{]

a transactions involving a distinct clique of sure was real; there were reports from t

participants in the drug traffic in the Seat-independent sources that two " contracts" y

A r-tle area. Those in the clique he had ex.

for the informant's execution were already g n)'

p:

ai posed were aware of his role, but members m existence.

cj, M-of the much larger group were not. The f$M informer feared that if he appeared at trial

[3,4] Even if the informe 's privilege vn as a governenent witness his role as an had ended with the disclosure of the infor.

WS informer would be established with the lat-mant's nr.me to appellant's counsel, we ter group as well. On this record the trial w uld reject appellant's challenge to his j

court could conclude that the informer priv-conviction on the ground that if appellant cc g

l ilege continued to serve its intended pur-was erroneously prevented from using the

@h@S Bu informant as a w,tness, the error was harm-pose despite the transmittal of the infor-i g

%:[

mant's name to appellant's counsel. Cf. less beyond a reasonable doubt. Error re-h United States v. Godkins, supra, 527 F.2d sulting in the unavailability of a witness is N

1321,1327 n.1 (Judge Gee, specially concur-subject to the harmless error rule (United y8 e

ring).

States v. Perlman,430 P.2d 22,26 (7th Cir.

w

t. a.;

The 1970); United States v. Watson, 421 F.2d k]

[2] Since the informer's privilege. re.

1357,135S (9th Cir.1970); Greenwell v.

• 9 mained, the in camera procedure adopted United States,115 U.S. App.D.C. 44, 317 sugj 2 gi by the court to aid it in determining wheth. F.2d 108,111 (1963)); and, as we have said, u

CJ 2 er the government interest protected by the the in camera transcript demonstrates that TI; privilege outweighed appdlant's right to the testimony of the informer would have N'T prepare his defense (United States v. Rovia-been consistent with that of the govern-g ro, supra, 353 U.S. at 62, 77 S.Ct. at 628, I ment agents, largely cumulative, and ad-Bue

=I L.Ed.2d at 646) was proper under United verse to appellant to the extent it was not pg 4

States v. Rawlinson, supra; United States cumulative.

Cir.

jd

v. Alvarez, supra; and United S:stes v.

2. Appellant complains because the testi:

f McLaughlin, 525 F.2d 517, 519 (9th Cir. court declined to instruct the jury that fail-agen-py 1975). See also United States v. Freund, ure to produce a material witness peculiarly lishet h

525 F.2d 873,876-78 (5th Cir.1976)(author-within the control of a party creates a requi 7:r1 ities cited). On the basis of the whole presumption that the absent witness's testi-infon

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'N UNITED STATES v. LONG

$y lt.

caeusur.2dses cas7sj 509 9

i mony would be adverse to that party. Ap-lant's testimony. We need not decide i

pe!! ant also complains becaus the court intervened when defense cou.'sel told the States v. Russell, 411 U.S. 423, 93 S.Ct..f '[, ldW whether the Bueno rule survived United

i k-Q jury in closing argument that a. subpoena 1637,36 L.Ed.2d 366 (1973)(compare United

,t.;

g-W had been issued for the informar.+ and

.! h. p1 served "but the government saw fit not.a States v. Mosley, 496 F.2d 1013 (5th Cir.

,!!! @g 1974), an<! United States v. West,511 F.2d produce him." The court told the jury that 1022 (ad Cir.1975), with United S.;tes v.

$F

+

u,l 6(:

} (

order of the court and neither the defend-Jett,491 F.2d 1078 (1st Cir.1974), and Unit-l the informant's absence "results from an

.y f (([6 ant nor the government is responsible for ed States v. Hampton,507 F.2d 832 (8th Cir.

t d[ $@WM 5

1974), cert. granted,420 U.S.1003,95 S.Ct.

E his failure to testify. The court's order 1445,43 L.Ed.2d 761 (1975)), a question the prohibiting the appearance of this witness Supreme Court may decide shortly in Ih}

.I was based upon facts that are not relevant Hampton. Bueno does not recuire that tne informant be produced but enly that the

- [j 9.-3 or material to your deliberations."

L p

government go forward with sufficient evi-

,,.' h.8 %d

[5-7] The court did not err. A " missing witness" instruction is proper only if "from dence to controvert the defendant's testi-l I, %[.$@

all the circumstances an inference of unfa-mony as to the source of the contraband.

i f

United States v. Dovelina, 525 F.2d 952,

.j vorable testimony from an absent witness is 955-56 (5th Cir.1976); United States v.

Q (j p

a natural and reasonable one." Burgess v.

Soto,504 F.2d 557 (5th Cir.1974); United L*

United States,142 U.S. App.D.C. 198, 440 States v. Comez-Rojas,507 F.2d 1213,1218 4

pj p

F.2d 226,234 (1970). Here, the witness was absent in part because the court had con. (5th Cir.1975); see also United States v.

Ih (j

Ii cluded that his testimony would not be fa-Gurule, 522 F.2d 20, 24 (10th Cir.1975)

]4 g

}

(holding that the jury may disbelieve un-vorable to the defense. Appellant also ar-gues, citing Judge Fahy's discussion in Bur-contradicted testimony by the defendant ask' y-1

. t.5 h t

M gess,440 P.2d at 2435, that even though a to the source of the contraband). In this i1 9 g '} j$

case the government offered evidence

" missing witness" instruction may not be which,if true, would have made it impossi.

l

-Q gy

{.h g

appropriate, counsel should be permitted to ble for appellant to have obtained the sub-l L $7 But the court did not forbid all reference to stance from the informer as he testified.

f,' ;' 4 S i comment on the absence of the witness.

fr, In view of this conflict in evidence, a ques-(

Q Mlf E$'

the absence of the informer. The court simply gave the jury the information it tion of fact as to the source of the cocaine L1

..r.0 i'

was presented for the jury to resolve.

needed to evaluate any comment that United States v. Dovalina, supra. Appel-

[d j

t pt might be made, and to avoid being misled. lant failed to request an instruction submit-2'

}

The court's comment was fair and accurate; ting this question of fact and the Bueno j

i

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• M.,,.

I contrary to appellant's assertion, it neither defense to the jury.

'!' j,I[ q, gg e

i I

suggested that the mformant s testimony Affirmed.

would have supported the Government, nor

'I i

". downgraded defense counsel before the

,l 9 j

. 't y @r j N.h.

f J u ry."

~

l

[8,9) 3.

Relying upon United States v.

t Bueno, 447 F.2d 903 (5th Cir.1971), and

""W Q.n.v.

I w-United States v. Oquendo,490 F.2d 161 (5th I

Cir.1974), appellant argues that appe!! ant's h

testimony that the substance sold to the

,h'.

agent was provided by the informer estab-i lished entrapment as a matter of law, and Iw M '.

)EdU, required the government to produce the 9

informer as a witness to contradict appel-

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