UNITED STATES of America, Plaintiff-Appellee, v. Sergio ALVAREZ, Jr., Defendant-Appellant

United States Court of Appeals for the Ninth Circuit1972-11-29No. No. 72-2226

469 F.2d 1065

Summary · law.co

Holding. The appellate court affirmed Alvarez's convictions, holding that the trial court properly denied disclosure of the informant's identity because Alvarez failed to demonstrate necessity, and that the jury instructions on admissions were not erroneous and in any event were forfeited by failure to object at trial.

Sergio Alvarez, Jr. was convicted of importing marijuana and possessing marijuana with intent to distribute following a border search of his vehicle that revealed a quantity of marijuana concealed in a false gasoline tank. Alvarez appealed on two grounds: first, that the trial court improperly withheld the identity of an informant, and second, that jury instructions regarding his admissions were misleading and erroneous.

Regarding the informant's identity, the court found that Alvarez failed to demonstrate that disclosure was necessary or essential to a fair trial. Under established precedent, the burden rests on the defendant to show why an informant's identity must be revealed, and Alvarez made no such showing. The court therefore upheld the trial court's denial of the disclosure motion.

On the jury instruction issue, Alvarez raised the objection for the first time on appeal despite having been given an opportunity to review and object to the instructions before trial. Because trial counsel approved the instructions without objection, and Alvarez failed to raise his concerns during trial, the court declined to review the claim. The court examined the instructions on the merits anyway and found no error that would have affected Alvarez's substantial rights.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether non-disclosure of an informant's identity violated defendant's right to a fair trial
Whether trial court's jury instructions regarding admissions were erroneous
Waiver of jury instruction objections by failure to raise them at trial

Procedural posture

Alvarez appealed his conviction for importing and possessing marijuana with intent to distribute following a jury trial and sentencing.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

SKOPIL, District Judge:

Sergio Alvarez, Jr., appellant, was convicted of importing marijuana in violation of 21 U.S.C. § 952(a) and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

The charges arose out of a border search of an automobile which appellant was driving from Nogales, Sonora, Mexico, to his home in Nogales, Arizona. A quantity of marijuana was found in a false gasoline tank in the undercarriage of the vehicle.

Appellant went to trial before a jury on both counts on May 18, 1972. He was found guilty on both counts and was sentenced to concurrent terms of two years on each count to be followed by special parole terms on each count which were to run consecutively. Appellant was also fined $1,000.00 on each of the two counts.

Appellant seeks reversal on the basis of two asserted errors:

1) That the trial court erred in withholding the identity of the informant; and

2) That the court’s instructions to the admissions of the appellant were misleading and erroneous.

The need for disclosure of the identity of an informant must be balanced against the Government’s flow of information. No showing was made that the disclosure of the informant’s identity would have been “relevant and helpful to the defense of the accused” or that it was “essential to a fair determination of a cause.” Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

This Court has consistently held that the burden is on the defendant to show the necessity of disclosure. United States v. Zito, 451 F.2d 361, 364 (9th Cir. 1971); United States v. Kelly, 449 F.2d 329, 330 (9th Cir. 1971); United States v. Estrada, 441 F.2d 873, 879 (9th Cir. 1971); United States v. Gibbs, 435 F.2d 621, 624 (9th Cir. 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1233, 28 L.Ed.2d 532 (1971); Gaylor v. United States, 426 F.2d 233, 234 (9th Cir. 1970); Encinas-Sierras v. United States, 401 F.2d 228, 231 (9th Cir. 1968); Lannom v. United States, 381 F.2d 858 (9th Cir. 1967), cert. denied 389 U.S. 1041, 88 S.Ct. 784, 19 L.Ed.2d 833 (1968). The district court properly denied the disclosure motion.

Appellant, for the first time on appeal, contends the trial court improperly instructed the jury regarding the admissions of the defendant. The court afforded counsel an opportunity to review the proposed instructions to the jury. Trial counsel approved the instructions. No objections were made, nor were any additions requested. The procedure followed by the trial court was proper and in accordance with Fed.R.Crim.P. 30. The obvious intent of the procedure followed by the court was to allow counsel to voice any objection to the giving or failure to give an instruction. Had counsel objected to the instruction at any time before the matter was submitted to the jury, the trial court could have considered the objection and this appeal and the attendant cost to the taxpayer could perhaps have been eliminated. This Court, in cases where substantial rights have not been affected, has held that it will not consider an objection to instructions not raised at the time of trial. United States v. Rebon-Delgado, 467 F.2d 11 (9th Cir., 1972); United States v. Marsh, 451 F.2d 219, 220 (9th Cir. 1971); and Benson v. United States, 402 F.2d 576, 580 (9th Cir. 1968).

The instructions of the trial court must be considered in their entirety. Medved v. United States, 411 F.2d 617, 618 (9th Cir. 1969). An examination of the instructions given by the court fails to reveal any error. If error was committed, it did not affect the substantial rights of appellant. Fed.R.Crim.P. 30 is a barrier to counsel raising an objection to instructions given by the cour„ which were not raised at the time of trial.

Affirmed.