How have the courts treated a request by a defendant for information regarding the manner in which the drug dealer was allegedly introduced to him by an undercover agent?

Before his trial appellant moved for a bill of particulars requesting, among other information, the "precise manner in which the crime charged in the indictment is alleged to have been

[381 F.2d 378]

committed." The court below upheld the Government's refusal to answer this request, and appellant alleges this ruling prejudiced him in preparing his defense. He states he did not know until trial that the Government claimed that its undercover agent was introduced to him by an informant, and that if the request had been answered he might have presented a successful entrapment defense. However, the trial court was within its discretion in allowing the Government to refuse to answer this broadly worded demand by appellant. Moreover, appellant's own trial testimony indicates that before trial he learned that the one who introduced the undercover agent to him was indeed an informer. If, despite this, appellant nevertheless was surprised by the Government's evidence, his proper remedy would have been to seek a continuance at the time when the evidence that surprised him was revealed. See United States v. Glaze, 313 F.2d 757, 760 (2 Cir. 1963).

[381 F.2d 378]

At the trial appellant requested, for the purposes of cross-examination, the grand jury testimony of the government agent who bought the heroin and who testified at trial to the purchase. Appellant was informed that this witness had not testified before the grand jury. Appellant made no further effort at trial to obtain any of the grand jury minutes, but upon appeal he maintains that the trial court should have ordered turned over to him the grand jury testimony of the agent or agents who did testify before the grand jury. As the trial court was not apprised of his desire for them, appellant cannot be heard now to complain that unrequested grand jury minutes were not made available, for in the absence of any request at trial there was no duty to turn them over to him, see United States v. Berata, 343 F.2d 469 (2 Cir.), cert. denied, 382 U.S. 812, 86 S.Ct. 28, 15 L.Ed.2d 60 (1965) and he may not raise the point on appeal, United States v. Indiviglio, 352 F.2d 276 (2 Cir. 1965), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966).