543 F2d 1175 United States v. Melchor Moreno

543 F.2d 1175

UNITED STATES of America, Plaintiff-Appellee,
v.
Ivan MELCHOR MORENO and Rigoberto Melchor Moreno,
Defendants-Appellants.

No. 75-2957.

United States Court of Appeals,
Fifth Circuit.

Dec. 10, 1976.

Wayne E. Windle, Jr., El Paso, Tex., for Rigoberto Moreno.

Dan L. Armstrong, El Paso, Tex., for Ivan Moreno.

John Clark, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Michael T. Milligan, Asst. U. S. Attys., El Paso, Tex., for plaintiff-appellee.

ON PETITION AND SUPPLEMENTAL PETITION FOR REHEARING

(Opinion dated August 9, 1976, 5th Cir., 536 F.2d 1042)

Before WISDOM, GODBOLD and LIVELY*, Circuit Judges.

PER CURIAM:

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1

In footnote 3 of our opinion we referred to the holding of United States v. Godkins, 527 F.2d 1321 (CA5, 1976), that the government's privilege against revealing the identity of an informer may be invoked only when the government seeks to avoid disclosure of an informer's identity, and we noted that when an accused seeks to subpoena an individual "already known to him" the privilege is irrelevant. This reference to "already known" is to be read in the light of Godkins, where the defendant knew the name of the informer. We do not imply that the government's privilege against revealing identity is irrelevant where all that the defendant knows is that there is an informer (or even an informer that he can describe), and he does not know the name of the informer.

2

The petition and supplemental petition for rehearing by the United States are OVERRULED.

*

Of the Sixth Circuit, sitting by designation