United States of America, Appellee, v. Sin Nagh Fong, Appellant, 491 F.2d 1390 (9th Cir. 1974)

William C. Snouffer (argued), Portland, Ore., for the appellant.

Jack C. Wong, Asst. U.S. Atty., Portland, Ore., for appellant.

Before BROWNING and SNEED, Circuit Judges, and BURKE,¹  District judge.

ORDER

The panel as constituted in the above case has voted to deny the petition for rehearing and to reject the suggestion for rehearing in banc.

The full court has been advised of the suggestion for an in banc hearing, and no judge of the court within the seven day period as suggested by General Order 15(5), Fed. R. App. P. Rule 35(b), has requested a vote on the suggestion for rehearing in band.

BROWNING, Circuit Judge (concurring):

I vote to deny the petition for rehearing and to reject the suggestion for rehearing in banc because appellant did not raise in the trial court his present contention that the government (1) had failed to make reasonable efforts to produce the informer, or (2) was in some way responsible for the unavailability of the informer as a witness. Appellant did move prior to trial for an order requiring the government to produce the informer as a witness. However, the only ground advanced in support of the motion was the clearly untenable one that the government had an absolute obligation to produce the informer so appellant could confront him at trial. Neither in connection with this motion nor at any other time in the proceedings below did appellant seek an order requiring the government to show that it had not contributed to the informer's unavailability and that it had made reasonable efforts to produce him. In these circumstances the district court did not err in failing to require the government to make such a showing. See United States v. Hayes, 477 F.2d 868, 871 (10th Cir. 1973).

I find no merit in appellant's claim that the government did not have probable cause to arrest him.