United States of America, Plaintiff-appellee, v. Arthur F. Hillary, Defendant-appellant.united States of America, Plaintiff-appellee, v. Oscar Thomas Laupert, Defendant-appellant, 862 F.2d 315 (4th Cir. 1988)

Oscar Thomas Laupert and Arthur F. Hillary appeal their convictions on charges of possession with intent to distribute cocaine and violation of the Travel Act, 18 U.S.C. §§ 1952(a) (3)¹  and 2.²  Laupert also appeals his conviction for the unlawful use of a communication facility in violation of 21 U.S.C. § 843(b).³  This appeal centers around the refusal by the district court to require the government, prior to trial, to reveal the identity of a paid informant, which was disclosed during the trial. Defendants also contend that federal jurisdiction under the Travel Act and 21 U.S.C. § 843(b) was unlawfully manufactured by the government. We affirm the convictions.

Laupert and Hillary, who were at the time of their arrest in possession of 5 kilograms of cocaine, were arrested on October 24, 1987, in Alexandria, Virginia, by Agent Ronald A.R. Khan of the Drug Enforcement Agency. Defendants' pre-trial motions which were denied on December 11 included motions for disclosure of impeachment evidence and a motion for disclosure of confidential informers.

At trial, Khan testified that Laupert called him on October 20th from a telephone in Maryland; Khan was then working undercover for the DEA in the District of Columbia area. Khan returned the call, which he recorded, and the two agreed to meet the next day, October 21, 1987.

At the meeting on October 21st, Khan met Laupert and Hillary, who Laupert introduced as his partner "Paul." The two told him that cocaine trafficking was their predominant business and that they had been trafficking in cocaine from Florida to the Virginia-Maryland area for approximately one year. They agreed to sell him five kilograms of cocaine for $22,000 per kilogram.

On October 23, 1987, Laupert called Khan from South Carolina. Khan returned the call and recorded the conversation. Laupert said he was returning to the D.C. area with the cocaine and that he would call the next morning to set up the transaction. Laupert did call the next morning from a pay phone in Virginia, and the transaction was set for 12:30 p.m. at a Holiday Inn in Alexandria.

Khan testified that Laupert and Hillary arrived at the Holiday Inn as scheduled, driving a Chrysler New Yorker. Hillary said he did not like the meeting place and that in the future he would prefer a better location. Hillary then told Laupert to get the cocaine from the car. While Laupert removed the right rear door panel to reveal five "bricks," Hillary busied himself cleaning the car's windshield. After Khan examined the bricks and determined they contained cocaine, he signaled to other DEA agents nearby, and Laupert and Hillary were arrested.

Hillary admitted being present at both meetings between Khan and Laupert, but claimed he accompanied Laupert on the trips only as a driver to help Laupert, who suffers from arthritis, take clothes and other belongings to Laupert's son in West Virginia. He testified that he was unaware of the substance of the conversation of the first meeting due to a hearing problem. When Laupert informed him of the details of that discussion later, Hillary claimed he told Laupert he wanted no part of a drug deal. Hillary further testified that he was totally unaware of the purpose of the second trip north until he and Laupert were approached by Khan in the Holiday Inn parking lot. Laupert corroborated Hillary's account of his role in the affair.

Laupert also admitted his role in transporting and delivering the cocaine to Khan, but he insisted his nephew, Patrick Purkey, had set him up. Laupert testified that after Purkey came to Florida in 1987, Purkey approached him about transporting cocaine to the D.C. area. Laupert stated he repeatedly rejected Purkey's suggestions and warned Purkey not to become involved in drug trafficking.

Laupert further testified that Purkey finally approached him and implied that he, Purkey, might be seriously injured or killed if he did not assist the D.C. area drug dealer. Purkey asked Laupert to simply speak to his friend "Ron" [Khan] on his next trip. Laupert admitted his meeting with Khan and the contents of the recorded telephone conversations, but he claimed that at their first face to face meeting, which was not recorded, he did not negotiate price. He said Khan acknowledged that he already had spoken to Purkey, and Laupert simply agreed to tell Purkey the price Khan was willing to pay him for the cocaine.

After returning to Florida, Laupert testified that he told Purkey he wanted no part of the deal. The next night, Laupert said Purkey borrowed his automobile, as he frequently did. When Purkey returned the car to Laupert, Purkey told Laupert he had placed the cocaine inside the car, explaining that he was being pressured by the people with whom he was dealing. Laupert said he panicked and didn't know what to do but pick up Hillary, drive to Virginia and hope that Khan backed out of the deal.

At trial, Khan admitted that Purkey was a paid DEA informant. Khan stated that Purkey had been paid $6,000 by the DEA--$2,000 for expenses and $4,000 as a reward for a good job. Khan also admitted that the DEA had no way of knowing whether Purkey had actually placed the cocaine in Laupert's car. Purkey was not subpoenaed and did not testify at trial.

The jury found Laupert and Hillary guilty of all charges against them.

On January 15, 1988, Laupert filed a motion for a new trial based on newly discovered evidence in the form of a post trial disclosure by Purkey. The affidavit was signed January 19, 1988, and Purkey's information was related to the defendants on January 13, 1988, six days after the verdict. It should also be noted that Purkey was Mrs. Laupert's nephew. In his affidavit, Purkey stated that the DEA had paid him approximately $10,000 and assisted him in clearing up several charges pending against him in the State of Maryland. Purkey also stated that as a result of threats from Khan to have him "put away" if he didn't continue to cooperate, he refused to speak with Laupert's investigator or counsel despite repeated efforts by these persons to contact him. The court denied the motion for a new trial.

Defendants claim that the district court's denial of their pre-trial motion for disclosure of the identity of the government's confidential informant denied them their due process rights by preventing them from exercising their Sixth Amendment right to confront the witnesses against them and their right to prepare an adequate defense.

Both the Supreme Court and this circuit have held that it is reversible error for a district court to refuse to order the government to reveal the identity of an informant who was not a mere tipster but an actual participant in the crime. Roviaro v. United States, 353 U.S. 53 (1956); McLawhorn v. North Carolina, 484 F.2d 1, 5 (4th Cir. 1973). However, the Court has held that it disfavors any absolute rule requiring disclosure, Roviaro, 353 U.S. at 62; McCray v. Illinois, 386 U.S. 300, 311 (1967). Whether denial of a motion to disclose the informant's identity is erroneous or not "must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Roviaro, 353 U.S. at 62.

While there is no doubt that the government informant in this case, Purkey, could have presented relevant testimony on Khan's credibility and perhaps as well as on the substance of Laupert's defense, we find that the district court did not commit reversible error when it refused the defendants' pretrial motion for disclosure of his identity. In proposed jury instructions filed January 5, 1988, the opening day of trial, defense counsel requested an instruction on the credibility of the paid informant, specifically referring to Purkey by name. Thus, while the government did not admit Purkey was the informant until the trial was underway, the defendants obviously were already aware of his role in the case. Despite this knowledge, however, Purkey was not subpoenaed as a witness, and the defendants did not even move for a continuance until he could be located. Therefore, even if we assume arguendo that the district court erred in denying defendants' pre-trial motion to disclose the informant's identity, this decision in no way harmed the defendants, and cannot be the basis for reversible error. United States v. Tibbetts, 565 F.2d 867, 868 (4th Cir. 1977).

Defendants also contend that their convictions under the Travel Act and Laupert's conviction for unlawful use of a communications facility should be overturned because the jurisdictional element for each was manufactured by the government. The evidence, however, was that Laupert and Hillary told Khan they had been trafficking in cocaine from Florida to the Virginia-Maryland area for approximately one year and that cocaine trafficking was their predominant occupation. Khan also testified that it was Laupert that first contacted him by paging him by telephone. Further, there is no evidence in the record from which to conclude the interstate travel or communications were specifically manufactured to create federal jurisdiction. See United States v. Brinkman, 739 F.2d 977, 982 (4th Cir. 1984).

Finally, Hillary contends that the evidence fails to show that he was involved in any business enterprise involving narcotics or controlled substances to support his conviction under 18 U.S.C. § 1952(a) (3). "The verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to support the finding of guilt." United States v. Sherman, 421 F.2d 198, 199 (4th Cir. 1970). We find that ample evidence was presented by the government to support this conviction.

Accordingly, defendants' convictions on all charges are

AFFIRMED.