Opinion
Case No. CR2-06-129.
April 7, 2008
ORDER
On April 2, 2008, the Court issued warrants for the arrests of Defendants Donald H. Ayers, Randolph H. Speer, Roger S. Faulkenberry, and James Dierker, based on the Petitions for Action on Conditions of Pretrial Release ("Petitions") presented by a Pretrial Services officer. The Petitions, in turn, were based on information suggesting that the Defendants had conspired "to flee the United States prior to sentencing." The Violation Reports accompanying the Petitions further elaborated as follows:
[O]n April 2, 2008, FBI Special Agent Kevin Horan provided information to Pretrial Services regarding an alleged conspiracy by the defendant and codefendants to flee the United States prior to sentencing. Specifically, Agent Horan indicated he spoke with a confidential informant who provided information pertaining to a conversation with co-defendant Lance Poulsen. The informant stated Mr. Poulsen advised he and codefendants had previously made arrangements to meet in Aruba if they were convicted at trial.
The Violation Reports went on to note that Defendant Rebecca Parrett has already fled and that her whereabouts are presently unknown.
On the same day that the Petitions were filed, the Government moved for revocation of Defendants' pre-sentence release on the same grounds as were presented in the Petitions. The Government's motion stated:
On April 1, 2008, the Federal Bureau of Investigation ("FBI") developed information from a confidential source, who reported to FBI that Poulsen told the confidential source that the NCFE defendants `had a plan' to flee to Aruba if they were convicted. Recently, the confidential source provided information to the FBI regarding other crimes which the FBI has been found to be credible [sic].
The Defendants were taken into custody on April 2 and the Court held a preliminary hearing on April 3 to advise Defendants Faulkenberry and Dierker — the two Defendants who reside within this jurisdiction — of the basis for their detention. The Court has been informed that similar hearings were held in the Middle District of Florida and the Northern District of Georgia for Defendants Ayers and Speer, respectively. The Court set April 16, 2008, as the date for Defendants' joint revocation hearing.
At the preliminary hearing for Defendants Faulkenberry and Dierker, disputes between the parties surfaced as to: (1) which side bears the burden of persuasion at the revocation hearing, and (2) whether Defendants are entitled to the identity of the confidential informant who advised the FBI about Defendants' alleged conspiracy to flee. The Court will address each of these issues in turn.
A. Burden of Proof
First, now that Defendants have been convicted of the charged offenses, 18 U.S.C. § 3143(a) creates a presumption of detention. 18 U.S.C. § 3143(a) ("the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence . . . be detained, unless. . . ."); 27 Moore's Federal Practice § 646.13 (Matthew Bender 3d ed.) ("[T]he Bail Reform Act creates a presumption in favor of detaining a convicted defendant pending sentence or appeal."). The statute requires a convicted defendant to show, by clear and convincing evidence, that he poses neither a risk of flight, nor a danger to the community. Id.; see also Fed.R.Crim.P. 46(c) ("The provisions of 18 U.S.C. § 3143 govern release pending sentencing or appeal. The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant."); United States v. Vance, 851 F.2d 166 (6th Cir. 1988). The Court sees no reason to deviate from the plain language of the statute by shifting the burden of proof to the Government just because the question of the Defendants' eligibility for pre-sentencing release is now postured in the form of a revocation hearing. The statute makes no such distinctions and the Court has not identified any case law that would support a burden shift to the Government. Thus, Defendants continue to bear the ultimate burden of persuasion to establish, by clear and convincing evidence, that they are not likely to flee or pose a danger to the community.
That being said, the Court concludes that it is appropriate to allocate to the Government the burden of going forward. In other words, the Government will be required to present evidence substantiating the conspiracy-to-flee allegations, but Defendants will, at all times, have the ultimate burden of persuasion. Structuring the hearing this way will effectuate the purposes of § 3143(a) and at the same time will afford Defendants reasonable due process protections enabling them to respond to the allegations giving rise to the Government's revocation motion. United States v. Abuhamra, 389 F.3d 309, 319 (2d Cir. 2004) (stating that "even though a guilty verdict greatly reduces a defendant's expectation in continued liberty . . . [t]he language of § 3143(a) confers a sufficient liberty interest in continued release . . . to warrant some measure of due process protection").
B. The Identity of the Confidential Informant
Defendants Faulkenberry and Dierker urge the Court to order the Government to disclose the identity of the informant to whom Poulsen allegedly revealed Defendants' pre-arranged plan to flee in the event they were convicted. Defendants argue that they cannot adequately challenge the Government's allegations without knowing who the informant is. Presumably, Defendants wish to test the informant's credibility and motivations.The Government has the privilege "to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." Roviaro v. United States, 353 U.S. 53, 59 (1957). To overcome this privilege, a defendant must "show how disclosure of the informant would substantively assist his defense" or "that disclosure is essential to a fair trial." United States v. Moore, 954 F.2d 379, 381 (6th Cir. 1992). A defendant's "mere conjecture or supposition about the possible relevancy of the informant's testimony" is not enough to warrant disclosure. United States v. Sharp, 778 F.2d 1182, 1187 (6th Cir. 1985). Moreover, although courts typically order disclosure of an informant's identity where the informant participated in the alleged offense, disclosure is usually denied where the informant is a mere "tipster." Id. at 1186, n. 2.
The Court finds that there is no basis for ordering disclosure here. The original source of the information underlying the Government's motion is a person well-known to Defendants: their co-defendant, Lance Poulsen. The informant did not participate in the alleged conspiracy to flee, but merely relayed to the FBI Poulsen's disclosure of Defendants' plan. Finally, the Court notes that the legal rules governing release of a confidential informant's identity have been crafted in the context of a defendant's right to a fair trial. Here, the trial has concluded, the Defendants have been found guilty, and we are now on the cusp of a bond-revocation hearing, a proceeding which allows for far fewer procedural protections than does a full-blown trial. For example, the Federal Rules of Evidence do not apply at bond hearings and courts therefore may base their detention decisions on hearsay evidence. See Abuhamra, 389 F.3d at 321; United States v. Horvath, 575 F. Supp. 516, 519-21 (D. Minn. 1983) (rejecting the defendants' request for disclosure of an informant's identity on the grounds that post-conviction revocation hearings are different in kind from pre-trial and trial proceedings in that they are not subject to the same procedural and evidentiary rigors).
Accordingly, the Court DENIES Faulkenberry's and Dierker's oral motion for disclosure of the informant's identity.
The Court recognizes that Defendants Ayers and Speer have not yet appeared in this Court and therefore have not had an opportunity to present their views on the burden-of-proof and confidential-informant disputes that the Court resolves in this Order. The Court therefore will allow these Defendants to be heard by way of a written motion. In addition, the Court will allow Defendants to file any other appropriate motion that they deem necessary to aid their preparation for the revocation hearing. Defendants shall file any such motions no later than Thursday, April 10, 2008. The Government shall file any responses by Monday, April 14, 2008. No reply briefs will be permitted. The Court will issue its orders on the pending motions, if any, prior to the revocation hearing on Wednesday, April 16, 2008.