Opinion
No. 04-40086-SAC.
December 8, 2004
MEMORANDUM AND ORDER
Defendant is charged with one count of being a felon in possession of a firearm. This case comes before the court on the defendant's motion to compel discovery regarding an alleged informant. (Dk. 14). Defendant's motion is based upon Roviaro v. United States, 353 U.S. 53, 59 (1957). The government opposes the motion in part, but has already provided much of the information defendant seeks.
Defendant does not state why the court should consider the individual in question to be an informant, but states that this person is the only known witness who places defendant in possession of the firearm. The government states that the purported informant is a mere witness whose name, address, and other information defendant already has.
Despite the government's objection, it has complied with many of defendant's requests by providing certain information sought. Specifically, the government has provided, or has agreed to provide the following information regarding the witness: her full name, her prior record, whether any deals, payments or other consideration were made to her, any recorded memorandum of communication between her and government agents, whether she took a polygraph examination, the extent of her work in the investigation of other cases, and the existence of other informants, with the same requested information. The court binds the government to provide this information, and finds defendant's motion moot as to the above requests.
Pretrial interview with witness
Defendant's request number five asks the court to compel the government to produce the alleged informant for a pretrial interview with defense counsel and her investigator. The government responds that defendant's mother has repeatedly sent this witness letters and made telephone calls for the purpose of attempting to influence the witness, and that the witness is aware that she can speak to defense counsel or her investigator if she wishes, but she does not wish to speak to either of them.
The general rule is that "[t]he government must use reasonable efforts to produce an informant so that a defendant may interview him or use him as a witness . . ." United States v. Muse, 708 F.2d 513, 514 (10th Cir. 1983). A defendant seeking to invoke this rule must come forward with evidence establishing that the witness is in fact an informer.
The Tenth Circuit has held that "an informer is one who is either in complicity with the government or who provides information for a reward of some sort." United States v. Wilks, 629 F.2d 669, 674 (10th Cir. 1980).
The voluntary submission of information or report of a crime to a government agency does not, without more, make an individual an informer, in the absence of some connection between the individual and the government agency. To be an informer the individual supplying the information generally is either paid for his services or, having been a participant in the unlawful transaction, is granted immunity in exchange for his testimony.United States v. Miller, 499 F.2d 736, 742 (10th Cir. 1974). "That a witness may hope to gain an advantage by testifying is insufficient to establish the witness is an informant." Wilks, 629 F.2d at 674, citing Miller, 499 F.2d at 742. See United States v. Lee, 972 F. Supp. 1330, 1343 (D. Kan. 1997).
Defendant has failed to show that the person in question is an informer. The government's response makes clear that it has made no deals with this person, has made no payments to her, and did not contact or employ her in any way prior to the events which led to defendant's arrest. Even if she were deemed to be an informant, however, this person has reportedly stated her desire not to speak to defense counsel. "Informants . . . `cannot be compelled to a pretrial interview with defense counsel.' United States v. Nixon, 777 F.2d 958, 967 n. 12 (5th Cir. 1985)." United States v. Ridley, 814 F. Supp. 992, 998 (D. Kan. 1993). Accordingly, this request shall be denied.
At the hearing, the government offered to have certain detectives contact the witness and ask her to contact defense counsel, for the purpose of informing such counsel directly of her desire or lack thereof to speak with her. The court accepted this offer, and expects the parties to act accordingly.
Psychiatric treatment or drug addiction
The only other contested item sought by defendant is evidence affecting the issues of this witness's bias or credibility, including evidence of psychiatric treatment of drug addiction. Defendant relies exclusively upon Rovario, but cites no particularized need for the requested information except to prepare for cross-examination.
The government responded at the hearing that it is not in possession of this information. The court is aware that the government understands its obligation under Brady and Giglio to provide all material exculpatory evidence in its possession. See United States v. Cooper, 283 F. Supp. 2d 1215, 1238, n. 3 (D. Kan. 2003) (explaining "possession" for Brady purposes). There is, however, no affirmative duty upon the government to take action to discover information which it does not possess. Id. No allegation is made that the prosecutor's office has compartmentalized information about different aspects of this case, or remains willfully ignorant of information held by other agencies. Nor has defendant made anything other than a general, conclusory assertion that such information exists. Mere possibilities or utter speculation will not give rise to a duty to search. See Cooper, 283 F. Supp at 1238, n. 3. This request shall therefore be denied.
IT IS THEREFORE ORDERED that defendant's motion to compel discovery (Dk. 14) is denied in part as moot, and is denied in part on the merits.