Opinion
No. 03-40026-01-SAC
October 29, 2003
MEMORANDUM AND ORDER
The case comes before the court on the defendant's second filing of pretrial motions which consist of a Motion to Compel Discovery Regarding Informant (Dk. 33) and a Motion to Suppress and Dismiss Count 3 in Superseding Indictment (Dk. 34). The government responded opposing both motions. (Dk. 35). The court heard the parties' arguments and evidence on October 7, 2003. The court permitted the defendant to supplement the record with an affidavit concerning ownership of a house and permitted the government to file any response. The defendant has filed an affidavit, and the government filed no response. Having reviewed all matters submitted and researched the law relevant to the issues, the court is ready to rule. Because the defendant filed a motion to suppress earlier in this case which this court denied in a prior order, the court will address only those matters specifically raised in the two pending motions.
INDICTMENT
On June 18, 2003, the grand jury returned a superseding indictment which, besides charging him with the original two counts of possession of firearms after a misdemeanor conviction for domestic violence in violation of 18 U.S.C. § 922(g), added a third charge of possession of ammunition after a misdemeanor conviction for domestic violence in violation of § 922(g).
MOTION TO COMPEL DISCOVERY REGARDING INFORMANT
The defendant seeks an order requiring the government to disclose not only the identify of the informant(s) mentioned in the search warrant but also other matters that would be used in the investigation, interview, and cross-examination of the informants. The government opposes disclosure arguing the informants were mere tipsters who the defendant is unable to show could offer testimony or information relevant or essential to a fair determination of the defendant's case. Without this showing from the defendant, the government insists the balance remains in favor of citizens' confidentially reporting criminal activity to the police without fear of reprisal.
In Roviaro v. United States, 353 U.S. 53, 59 (1957), the Supreme Court recognized "the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." This privilege is "by no means absolute." United States v. Brodie, 871 F.2d 125, 128 (D.C. Cir. 1989). Whether to disclose the identity of a confidential police informant is a determination that requires a court to balance the public interest in protecting the flow of information in a manner necessary for effective law enforcement against an individual's right to prepare his defense. 353 U.S. at 62. In determining whether disclosure is necessary, the court must consider the particular circumstances of the case, including the crime charged, the possible defenses, and the significance of the informer's testimony. Id. "Where it is clear that the informant cannot aid the defense, the government's interest in keeping secret his identity must prevail over the defendant's asserted right of disclosure." United States v. Martinez, 979 F.2d 1424, 1429 (10th Cir. 1992), cert. denied, 507 U.S. 1022 (1993).
As a general rule, "[a] defendant may obtain the identity and whereabouts of an informer if his testimony might be relevant to the defendant's case and justice would be best served by disclosure." United States v. Leahy, 47 F.3d 396, 398 (10th Cir. 1995). In practice, the Tenth Circuit has not required disclosure "where the information sought `would be merely cumulative,' or where the informer did not participate in the illegal transaction," United States v. Mendoza-Salgado, 964 F.2d 993, 1001 (10th Cir. 1992) (quoting United States v. Scafe, 822 F.2d 928, 933 (10th Cir. 1987)) (other citations omitted), where the informant is not a participant or witness to the crime, United States v. Brantley, 986 F.2d 379, 383 (10th Cir. 1993), or where the informant is a mere tipster, United States v. Wynne, 993 F.2d 760, 766 (10th Cir. 1993). "Where it is clear that the informant cannot aid the defense, the government's interest in keeping secret his identity must prevail over the defendant's asserted right of disclosure." United States v. Martinez, 979 F.2d 1424, 1429 (10th Cir. 1992).
A defendant seeking disclosure has the burden of proof. United States v. Sinclair, 109 F.3d 1527, 1538 (10th Cir. 1997). The defendant must come forward with evidence establishing that the Roviaro criteria favor disclosure. United States v. Blevins, 960 F.2d 1252, 1258-59 (4th Cir. 1992). More than suspicion or speculation is needed to meet the defendant's burden. United States v. Williams, 898 F.2d 1400, 1402 (9th Cir. 1990). Mere speculation about the usefulness of an informant's testimony is not sufficient to warrant disclosure. Mendoza-Salgado, 964 F.2d at 1001. "A CI's [confidential informant's] testimony must be shown to be valuable to a defendant; mere speculation is not enough." United States v. Leahy, 47 F.3d at 398. "`The defendant must explain to the court as precisely as possible what testimony he thinks the informer could give and how this testimony would be relevant to a material issue of guilt or innocence.'" Blevins, 960 F.2d at 1259 (quoting 2 Jack B. Weinstein Margaret A. Berger, Weinstein's Evidence ¶ 510[06] (1991)); see also United States v. Ridley, 814 F. Supp. 992, 996 (D. Kan. 1993).
The defendant has not met his burden of showing how the informants' testimony would be valuable to the fair defense of his case in light of the government's assertion that the informants have limited information, were not present when the charged activity occurred, were not active participants in the charged criminal activity, cannot provide any exculpatory evidence, and were mere tipsters. The government represents that it will not call the informants as witnesses at trial. The defendant does not allege any testimony he thinks the informants could give or how such testimony might be relevant to a material issue in this case. At the hearing, the defendant essentially conceded he could not meet this burden. Under these circumstances, the public interest in encouraging the free flow of information between citizens and law enforcement officers outweighs the defendant's need for the identity of the informants. This motion is denied.
MOTION TO SUPPRESS AND DISMISS COUNT THREE
In his motion, the defendant makes a series of cursory arguments challenging count three without citing a single legal authority and only briefly mentioning the Second Amendment to the United States Constitution. The defendant asks for evidence to be suppressed without identifying the evidence at issue and seeks to dismiss count three as a matter of law. Such a modest effort in presenting these arguments obviously comports with their lack of legal merit. The court likewise will be brief in its ruling.
In a single sentence, the defendant argues the search warrant which was executed at 810 S.E. Chandler where the officers discovered the ammunition that is the subject of count three was obtained by information from an unreliable unnamed informant. The court addressed and decided this very issue in footnote one at page six of its prior order filed June 16, 2003. (Dk. 25). At the hearing, the defendant also repeated his argument from his first set of motions that the search warrants were executed in an unconstitutional manner. The court decided that issue in its prior order. Because the defendant raises no new arguments or issues that require additional comment, the court will not revisit those rulings.
The defendant next comments that he "voluntarily appeared before officer Richard Hundertfund . . . on July 22, 2002, to assist" in finding the persons "responsible for weapons found in a house just across the street from where Mr. Arzate had once stayed." (Dk. 34, ¶ 1). The defendant contends that he voluntarily submitted to this interview and that the government has breached its "agreement" not to charge him on the basis of any information he provided during the interview.
It is difficult to say what legal bases are being argued in the defendant's motion for the relief he seeks as a result of this alleged agreement. The defendant does not purport to argue that Officer Hundertfund had any actual authority or asserted authority to bind the federal government to this alleged agreement. Nor does the defendant make any effort to apply Fed.R.Evid. 410 or Fed.R.Crim.P. 11(f) to his allegations. Because the defendant does not even hint that his interview was part of any plea negotiations, such an effort would meet with failure. Finally, the other possible legal theory is a due process challenge to the voluntariness of his statement. The defendant does not make any allegation of involuntariness, but this theory appears to be the only legal basis that could generally support his vague allegations.
Before using a defendant's statement against him, the government must prove its voluntariness by a preponderance of evidence. Lego v. Twomey, 404 U.S. 477, 489 (1972). The court looks to the totality of the circumstances in determining whether the statements were voluntary. United States v. Glover, 104 F.3d 1570, 1579 (10th Cir. 1997). Factors relevant in making this determination include: "(1) the characteristics of the defendant: age, education, intelligence, and physical and emotional attributes; (2) the circumstances surrounding the statement, including the length of detention and questioning and the location of questioning; and (3) the tactics, if any, employed by officers. (citations omitted). In no case, however, is any single factor determinative." United States v. Chalan, 812 F.2d 1302, 1307 (10th Cir. 1987), cert. denied, 488 U.S. 983 (1988).
The Supreme Court has "never `embraced the theory that a defendant's ignorance of the full consequences of his decisions vitiates their voluntariness.'" Connecticut v. Barrett, 479 U.S. 523, 530 (1987) (quoting Oregon v. Elstad, 470 U.S. 298, 316 (1985)). In deciding if the waiver was intelligent, the court looks at whether "the defendant knew that he did not have to speak to police and understood that statements provided to police could be used against him." United States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990) (citation omitted), cert. denied, 499 U.S. 908 (1991). The defendant need not appreciate "the tactical advantage of remaining silent" for the waiver to be intelligent. Id. A promise of leniency is relevant to determining whether a confession was involuntary and, depending on the totality of the circumstances, may render a confession coerced. See Arizona v. Fulminante, 499 U.S. 279, 286-87 (1991) (confession coerced where informant threatened defendant with violence and promised defendant protection from inmate violence); Griffin v. Strong, 983 F.2d 1540, 1543 (10th Cir. 1993) ("Where a promise of leniency has been made in exchange for a statement, an inculpatory statement would be the product of inducement, and thus not an act of free will." (internal quote marks and citation omitted)); United States v. Garot, 801 F.2d 1241, 1245 (10th Cir. 1986) ("The question in `plea bargaining' situations is . . . whether the promise was coercive in nature, i.e. whether the accused was so gripped by the hope of leniency that he did not or could not freely and rationally choose among the available courses of action."). Courts also have held that a defendant's statement may be involuntary if induced by an officer's promise to consider any statement by the defendant as "off the record" or an officer's promise not to use any statement against the defendant. See, e.g., United States v. Swint, 15 F.3d 286 (3rd Cir. 1994); United States v. Winters, 2000 WL 1649516 (D. Kan. Nov. 1, 2000).
Richard Hundertfund, an officer in the Narcotics Unit of the Topeka Police Department, testified that the defendant and his attorney came to the police station on July 22, 2002, to discuss the investigation related to the execution of search warrants at 810 and 815 Chandler on July 17, 2002. Officer Hundertfund had not arrested the defendant and did not otherwise indicate to the defendant that he was under arrest. Nor did the officer suggest that the defendant was in custody or that he was not free to leave at anytime. Before the interview began, the defendant's attorney asked Officer Hundertfund to sign a document entitled, "Ground rules and understanding." (Govt. Ex. 1). Officer Hundertfund refused to sign the offered document explaining that he did not have any authority to stipulate to the matters discussed there and that the defendant and his attorney would have to make these arrangements with representatives of the Shawnee County District Attorney, United States Attorney, or the Legal Department of the Topeka Police. Despite Officer Hundertfund's refusal to sign the tendered written rules of understanding, the defendant chose not to contact these legal representatives at that time and proceeded with the interview. During the interview, the defendant's attorney occasionally stopped the defendant from answering the officer's questions. Officer Hundertfund testified that he could not recall engaging in any plea negotiations or offering any consideration or leniency during the interview. Officer Hundertfund denied there was any understanding between him and the defendant or the defendant's attorney that the defendant's statements would not be used against him. Based on what the defendant's attorney said during the interview, Officer Hundertfund did understand that the defendant's attorney within the next day or so would be contacting a representative with one of the prosecutor's offices.
On July 30, 2002, the defendant and his attorney again came to the police station to speak with Officer Hundertfund. The defendant's attorney did not tender any written understanding during the interview. As with the prior interview, Officer Hundertfund did not treat the defendant as if in custody and did not indicate that the defendant was under arrest. The defendant's attorney stopped the defendant from answering some questions during the interview.
The government has carried its burden of proving the defendant's statements during the interviews of July 22nd and July 30th were voluntary. On both occasions, the defendant and his attorney came to the police department for the purpose of discussing the police investigation and his connection to it. The defendant's attorney remained with the defendant throughout the interviews. Officer Hundertfund openly refused to enter into any offered agreement for certain rules and understandings during the interview and denied having any authority to enter into such an agreement. The officer told the defendant and his attorney that only representatives with the prosecutor's offices or the legal department could enter into such an agreement. There is no evidence that Officer Hundertfund made any representation that the defendant's statements were off the record or lead the defendant or his attorney into believing that there was an informal or unwritten understanding concerning their interview. The court has no factual basis for finding the defendant would have reasonably believed that he was under any compulsion to talk with the officer or that his statements would not be used against him. Indeed, the defendant's attorney advised the defendant not to answer certain questions and the defendant followed his attorney's advice. Because there is no evidence that Officer Hundertfund made any promises, representations or even suggestions of leniency, plea negotiations or immunity, the court has no reason to question the voluntariness of the defendant's statements otherwise plainly evidenced by the circumstances of the interviews.
In the span of two sentences, the defendant challenges the constitutionality of 18 U.S.C. § 922(g) arguing the use of domestic battery legislation and, in particular, the use of a misdemeanor domestic battery conviction as a method of gun control is unconstitutional and denies him rights under the Second Amendment. The defendant did not cite any legal authority in support of his argument. Even the most cursory research shows these very same arguments have been soundly rejected in this circuit and district, United States v. Wilbern, 2000 WL 554134, at *2 (D. Kan. Apr. 12, 2000); United States v. Boyd, 52 F. Supp.2d 1233, 1237 (D. Kan. 1999), aff'd, 211 F.3d 1279 (10th Cir. Apr 26, 2000) (Table), and has found no success in others, United States v. Finnell, 27 Fed. Appx. 166, 2001 WL 1464305 (4th Cir. 2001), cert. denied, 535 U.S. 1027 (2002); United States v. Lewis, 236 F.3d 948, 950 (8th Cir. 2001); United States v. Chayez, 204 F.3d 1305 (11th Cir. 2000). The court rejects the defendant's challenge here.
Finally, the defendant alleges that government added count three "in an attempt to avoid providing the defendant with additional information he requested in the Omnibus Report jointly filed on March 19, 2003," where he requested information about the informants mentioned in the search warrant. The court does not understand the logic to this argument, since the government's addition of count three does not provide it any ground for evading any obligations under Roviaro and its progeny. Assuming the defendant is alleging vindictive prosecution in response to a discovery request, the defendant must prove either (1) "actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness." United States v. Lampley, 127 F.3d 1231, 1245 (10th Cir. 1997), cert. denied, 522 U.S. 1137 (1998). Upon proof of either element, the burden then shifts to the government to justify its prosecutorial decision based on "legitimate, articulable, objective reasons." United States v. Raymer, 941 F.2d 1031, 1040 (10th Cir. 1991). If the defendant fails to prove either element, the trial court need not address the government's justification for its prosecutorial decision. Id. Courts will not presume vindictiveness merely by the appearance of vindictive motives. United States v. Sarracino, 340 F.3d 1148, (10th Cir. 2003). The determination of prosecutorial vindictiveness turns upon "whether the prosecution engaged in conduct that would not have occurred but for the prosecution's desire to punish the defendant for exercising a specific legal right." Id. (citations omitted). The defendant has not carried his burden of proving actual vindictiveness or any circumstances giving rise to a presumption of vindictiveness.
IT IS THEREFORE ORDERED that the defendant's Motion to Compel Discovery Regarding Informant (Dk. 33) and Motion to Suppress and Dismiss Count 3 in Superseding Indictment (Dk. 34) are denied.