Kaufman, Anderson and Feinberg, Circuit Judges.
This case raises the narrow question whether an evidentiary hearing should have been held on a motion for a new trial. Rohalia Roberts appeals from an order of the United States District Court for the Southern District of New York, John M. Cannella, J., denying without an evidentiary hearing appellant's motion for a new trial. For reasons given below, we hold that there should have been a hearing. Accordingly, we remand for that purpose.
Appellant was tried on a two-count indictment charging the unlawful sale of heroin on two occasions. After a one-day trial, Judge Cannella sitting without a jury found appellant guilty. Appellant does not claim that the evidence was insufficient or that the judge committed error during the course of the trial. Appellant argues only that he should have been given a new trial, or at least an evidentiary hearing on his motion for a new trial, on the grounds that (1) he offered newly discovered, significant evidence and (2) the Government had suppressed vital information before and during the trial. Therefore, we shall summarize only the facts relevant to those issues.
The Government's case at trial was offered through narcotic agents Jesse A. Spratley, Michael A. Antonelli and (in rebuttal) Jerome M. Weinberg; the latter two were surveilling agents. According to the agents, informant Charles Robinson introduced agent Spratley to appellant and was present while they first negotiated and later consummated sales of heroin by appellant to the agent on July 30, 1964 and on August 3, 1964. Appellant testified in his own behalf; he admitted that the informant, whom he already knew, had introduced the agent to him on July 30. However, Roberts denied that there was any conversation at that time about narcotics or that he had any later meetings that evening or on August 3 with the agent and the informant. As is frequently the case, the judge was thus presented with conflicting versions of what had occurred; he accepted the Government's.*fn1
After the guilty verdict on May 10, 1965, Roberts was remanded to Federal Detention Headquarters at West Street in Manhattan. Roberts asserts, and the Government does not deny, that informant Robinson had also recently been confined there following his own conviction on April 27, 1965 for a narcotics violation, and that Robinson had been sent to the Federal Correctional Institution at Danbury, Connecticut a few days before Roberts arrived at West Street. In June 1965, Roberts was sentenced to concurrent five-year prison terms on his two-count conviction; thereafter, he too was sent to Danbury. Later, appellant obtained an affidavit from Robinson supporting appellant's account of his alleged single meeting with agent Spratley. Appellant timely filed a handwritten notice of appeal in June 1965, and also obtained leave to appeal in forma pauperis. In October 1965, this court appointed The Legal Aid Society as appellate counsel to represent Roberts;*fn2 over a year later, on Roberts's motion, this court remanded the action to the district court to allow Roberts to move there for a new trial. Thereafter, Roberts brought such a motion under Rule 33, Fed.R.Crim.P., which was decided by Judge Cannella in March 1967. The judge found that the motion was "entirely without merit and that no hearing is necessary." This appeal is from the order denying a new trial.
There were two grounds for the Rule 33 motion in the district court. The first was that Roberts and his trial counsel had attempted to locate Robinson as a possible defense witness before the trial and at trial, but were unable to do so. The affidavit by Robinson corroborating Roberts's story at trial was offered as newly discovered, significant evidence. The second claim charged suppression of evidence; it emphasized that the Government at the time of trial knew where Robinson was because the Assistant United States Attorney, who tried the case against appellant, had just successfully prosecuted Robinson. Appellant argued that the Government also knew of the defense's effort to locate Robinson, but said nothing despite a request for the information. One of the moving papers even implied a conscious effort on the part of the Government to remove Robinson from the New York area before the trial started. According to appellant, this amounted to an unconstitutional suppression of evidence. Brady v. State of Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The Government denied that any request had been made to furnish Robinson's whereabouts or that it had made any effort to render him unavailable. It also pointed out that Robinson had given the Government two signed statements, which corroborated the trial testimony of the agents, and that Roberts had known Robinson's identity prior to the commencement of the trial and yet had made no effort to locate him.
A review of the record suggests that the only substantial issue before this court is a narrow one. Insofar as the motion for a new trial was based on "newly discovered evidence," Roberts did not display the requisite due diligence. United States v. Abrams, 357 F.2d 539, 550 (2d Cir.), cert. denied, 384 U.S. 1001, 86 S. Ct. 1922, 16 L. Ed. 2d 1014 (1966). Roberts knew Robinson's identity and his potential importance as a witness; moreover, Roberts himself alleged that before trial "a friend" told him that Robinson was in a city jail. A simple check of district court records would have disclosed Robinson's conviction a short time before appellant's trial and where Robinson was detained. These were undisputed facts and were sufficient to justify a finding by the judge of lack of diligence. Similarly, the suppression of evidence point was largely inflated. There is no justification for the insinuation that the Government had delayed appellant's trial so that Robinson could be sent to Danbury.*fn3 Moreover, despite the aura of oppression created by Roberts, this is not a case of knowing use of false evidence, e.g., Miller v. Pate, 386 U.S. 1, 87 S. Ct. 785, 17 L. Ed. 2d 690 (1967), or of concealment of evidence obviously helpful to the defendant. See Brady v. State of Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); cf. Giles v. State of Maryland, 386 U.S. 66, 96-102, 87 S. Ct. 793, 17 L. Ed. 2d 737 (1967) (opinion of Fortas, J.). The record indicates that the Assistant United States Attorney who tried the case on May 10 had been assigned to it on May 7, that until then he was unaware of Robinson's connection with it, and that Robinson's statements in the Government's file indicated that his testimony would be harmful, not helpful, to appellant.
However, we are still left with a troublesome issue. The law is clear that when an informant's testimony is "essential to a fair determination of a cause," the Government may be required to disclose his identity and address, if known. Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957); United States v. D'Angiolillo, 340 F.2d 453, 455 (2d Cir.), cert. denied, 380 U.S. 955, 85 S. Ct. 1090, 13 L. Ed. 2d 972 (1965); cf. McCray v. State of Illinois, 386 U.S. 300, 309-312, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967). While the request is generally made in the context of a hearing on probable cause for an arrest or search, the issue may arise, as in Roviaro, at trial as well. It is undisputed that Robinson was the informant in this case. Moreover, agent Spratley made no secret of Robinson's status at trial and testified that he was present during all the significant events; Robinson was obviously a crucial witness to the alleged narcotics transactions. Accordingly, had defense counsel at trial clearly requested Robinson's whereabouts in order to interview him as a potential witness, we have no doubt that the judge should have required the Government to produce that information. The question is whether a sufficient request was made.
The motion for a new trial contained an affidavit of Roberts's trial counsel in which he swore:
Your deponent has read the minutes of the trial which at page 41 thereof show that I asked the government the whereabouts of the informant and was told that they did not know. The informant would have been a crucial witness for the defendant.
It is also my recollection that I had asked the United States attorney the whereabouts of the informant and he said he did not know.
Page 41 of the minutes referred to above contains the following interchange in the cross-examination of agent Spratley:
Q. So in other words it is your testimony that the informant sat there in the middle while you handed money to this defendant and he handed you this package, this cigarette ...