Opinion
Case No.: CR 22-00523-CJC
2023-01-17
UNITED STATES of America, Plaintiff, v. David CONCEPTION, Defendant.
David Y. Pi, Assistant U.S. Attorney, K. Afia Bondero, Assistant U.S. Attorney, AUSA - Office of U.S. Attorney General Crimes Section, Los Angeles, CA, for Plaintiff. Jaya C. Gupta, Public Defender, Office of the Federal Public Defender, Santa Ana, CA, Michael D. Driscoll, Jr., Public Defender, Federal Public Defenders Office, Los Angeles, CA, for Defendant.
David Y. Pi, Assistant U.S. Attorney, K. Afia Bondero, Assistant U.S. Attorney, AUSA - Office of U.S. Attorney General Crimes Section, Los Angeles, CA, for Plaintiff. Jaya C. Gupta, Public Defender, Office of the Federal Public Defender, Santa Ana, CA, Michael D. Driscoll, Jr., Public Defender, Federal Public Defenders Office, Los Angeles, CA, for Defendant. ORDER DENYING IN SUBSTANTIAL PART EX PARTE APPLICATION FOR A PROTECTIVE ORDER REGARDING DISCOVERY CONTAINING PERSONALLY IDENTIFIABLE INFORMATION AND CONFIDENTIAL INFORMANT INFORMATION [Dkt. 33] CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
On November 8, 2022, Defendant David Conception was indicted for one count of engaging in the business of dealing in firearms without a license, two counts of possession of a machinegun, and one count each of distribution of fentanyl and a fentanyl analogue. (See Dkt. 12 [Indictment].) The Government now applies ex parte for a protective order governing the use and dissemination of information concerning any confidential informant ("CI") who may testify at trial in this case. (See Dkt. 33 [Government's Ex Parte Application for a Protective Order Regarding Discovery Containing Personally Identifiable Information and Confidential Informant Information, hereinafter "App."].) For the following reasons, the Government's application is DENIED IN SUBSTANTIAL PART.
II. DISCUSSION
"Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph" any item if it "is within the government's possession, custody, or control and (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant." Fed. R. Crim. P. 16(a)(1)(E). But "[a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief." Id. 16(d)(1). A "trial court can and should, where appropriate, place a defendant and his counsel under enforceable orders against unwarranted disclosure of the materials which they may be entitled to inspect." Alderman v. United States, 394 U.S. 165, 185, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). "The burden of showing 'good cause' is on the party seeking the order . . . ." United States v. Cordova, 806 F.3d 1085, 1090 (D.C. Cir. 2015); accord United States v. Yassine, 574 F. App'x 455, 461 (5th Cir. 2014).
In assessing the propriety of a protective order, courts may generally consider "the safety of witnesses and others, a particular danger of perjury or witness intimidation, the protection of information vital to national security, and the protection of business enterprises from economic reprisals." 2 Charles Alan Wright et al., Federal Practice & Procedure § 262 (4th ed. Apr. 2022 Update); see also Fed. R. Crim. P. 16(e) advisory committee's note to 1966 amendment (same). "[I]t is obvious," for example, that a protective order "would be appropriate where there is reason to believe that a witness would be subject to physical or economic harm if [the witness's] identity is revealed." Fed. R. Crim. P. 16(d)(1) advisory committee's note to 1974 amendment.
Conception does not dispute the appropriateness of a protective order in this case. (See Dkt. 34 [Opposition to Government's Ex Parte Application for a Protective Order Regarding Discovery Containing Personally Identifiable Information and Confidential Informant Information, hereinafter "Opp."] at 1.) Rather, Conception and the Government disagree on several terms of the Government's proposed order. The terms include (1) allowing the Government to redact all PII from the CI materials, (2) requiring that Conception and prospective witnesses review CI materials only in the presence of defense counsel, rather than in the presence of another member of the Defense Team, unless that member has received the preapproval of the Government "in its sole discretion," (3) requiring that prospective witnesses agree in writing, rather than orally, to the terms of the proposed order before reviewing CI materials, and (4) requiring that all CI materials be either destroyed or returned to the Government within thirty days of the conclusion of all appellate or post-conviction proceedings. (App. at 4-13; Opp. at 1.) On each proposed term, Conception's objections have merit.
The proposed protective order defines "Defense Team" as (1) Conception's "counsel of record," (2) "other attorneys at defense counsel's office" (namely, the Federal Public Defender's Office for the Central District of California) "who may be consulted regarding case strategy in this case," (3) "defense investigators who are assisting defense counsel with this case," (4) "retained experts or potential experts," and (5) "paralegals, legal assistants, and other support staff to defense counsel who are providing assistance on this case." (Dkt. 33-1 [(Proposed) Protective Order Regarding Discovery Containing Personal Identifying Information and Confidential Informant Information, hereinafter "PPO"] at 3 ¶ 4(d).)
A. Redaction of PII
"The government has a limited privilege to withhold an informant's identity. This privilege serves several important law enforcement objectives, including encouraging citizens to supply the government with information concerning crimes." United States v. Henderson, 241 F.3d 638, 645 (9th Cir. 2000) (citation omitted). After all, "[i]t is no secret that informers whose identities are revealed prior to trial are often 'among the missing' when the trial date finally arrives." United States v. Hernandez, 608 F.2d 741, 745 (9th Cir. 1979). The privilege, however, "must give way where the disclosure of the identity or contents of a communication 'is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause.' " United States v. Williams, 898 F.2d 1400, 1402 (9th Cir. 1990) (quoting Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). "To obtain disclosure, a defendant must show a need for the information, and in doing so, must show more than a 'mere suspicion' that the informant has information which will prove 'relevant and helpful' . . . [or] will be essential to a fair trial." Henderson, 241 F.3d at 645 (citations omitted). The inquiry requires "balancing the public interest in protecting the flow of information against the individual's right to prepare his defense . . . , taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Roviaro, 353 U.S. at 62, 77 S.Ct. 623.
The Government seeks to redact the CI's PII from the CI materials. That appears warranted—at least for now. The Government represents that it has produced and will continue to produce information detailing the CI's role in the investigation, and Conception has not explained why this production is insufficient. Conception argues that other provisions of the proposed order—such as the limitation on only the Defense Team possessing the information and using the information for this case and for no other purpose—are adequate to protect the CI. (See Opp. at 2-4.) This argument, however, misses the point. The Government has a limited privilege against disclosure of a CI's identity, and "[t]he defendant bears the burden of demonstrating the need for disclosure." Williams, 898 F.2d at 1402; accord United States v. Wong, 886 F.2d 252, 256 (9th Cir. 1989); United States v. Whitney, 633 F.2d 902, 911 (9th Cir. 1980). Absent that showing, the alleged adequacy of other terms of a protective order is neither here nor there. To be sure, disclosure may be required later. If the Government calls the CI as a witness at trial, or if new information comes to light demonstrating the criticality of the identity of the CI, the calculus might change. But until then, the CI's PII need not be disclosed.
Redaction of PII for individuals other than the CI is a different story. The Government's "privilege to withhold an informant's identity," Henderson, 241 F.3d at 645, is just that—a privilege to withhold an informant's identity. The privilege does not apply to others' identities. Withholding of the PII of any such individual may be warranted if the Government can demonstrate good cause, such as concerns for the individual's "safety" or a "a particular danger of perjury or witness intimidation." 2 Wright et al., supra, § 262; see also Fed. R. Crim. P. 16(e) advisory committee's note to 1966 amendment. The Government has not to date argued any cause to withhold the PII of other individuals. It alludes to information regarding "other third parties," (Mot. at 4), but it says nothing more. Thus, at this juncture, redacting their PII is inappropriate.
B. Preapproval of Other Defense Team Members' Reviewing Materials
The proposed protective order limits Conception and prospective witnesses to reviewing CI materials only with defense counsel, not other members of the Defense Team, absent preapproval by the Government "in its sole discretion." (PPO ¶ 4(i) at 4.) This limitation is unduly burdensome. First, it would take away from defense counsel precious time that counsel could spend on other aspects of the representation, to say nothing of counsel's representation of other clients. The geographic distance between counsel and Conception alone is a significant burden. Counsel works in Santa Ana, California, while Conception resides nearly two-hundred miles away in Santa Maria, California. The drive from one to the other is nearly four hours in duration. See Driving Directions from Santa Ana, CA, to Santa Maria, CA, Google Maps, https://www.google.com/maps (follow "Directions" hyperlink; then search starting point field for "Santa Ana, CA" and search destination field for "Santa Maria, CA"). Reviewing materials with prospective witnesses may similarly entail traveling far distances. Second, the preapproval requirement renders Conception dependent on the benevolence of his adversary "in its sole discretion" in determining which members of his Defense Team may participate in discovery review. That may dictate who may be a part of the Defense Team at all.
Imposing this burdensome limitation is inappropriate, as the Government has failed to show how it is necessary to protect the CI. The Government claims that the limitation mitigates "the risk of unauthorized dissemination of CI Materials." (App. at 6.) Other provisions of the proposed order, however, strictly control dissemination. All members of the Defense Team work at the direction of counsel, "an officer of the court, [who], like the court itself, [is] an instrument or agency to advance the ends of justice." In re Snyder, 472 U.S. 634, 644, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985) (citation omitted). There is no reason to believe that they will not comply with these obligations, and "[i]t is not to be presumed . . . that a sworn officer of a court would . . . disregard [the officer's] duty" or "subvert the ends of justice." Richards v. United States, 126 F. 105, 111 (9th Cir. 1903); see also Truswal Sys. Corp. v. Hydro-Air Engineering, Inc., 813 F.2d 1207, 1211 (Fed. Cir. 1987) ("We will not assume that counsel would breach the duty of an officer of the court . . . ."). And notably, while the Government insists on supervising the who and the how of preparing Conception's defense, it has not insisted on doing so in other cases.
See, e.g., [Proposed] Protective Order Regarding Discovery Containing Confidential Informant Information ¶ 4(i) at 4, United States v. Triefenbach, No. CR 21-133 (C.D. Cal. Dec. 13, 2021), ECF No. 28-1; [Proposed] Protective Order Regarding Discovery Containing Privacy Act Information and Confidential Informant Information ¶ 5(g), (i) at 6, United States v. Alonso, No. 22-cr-00530 (C.D. Cal. Dec. 15, 2022), ECF No. 30-1; [Proposed] Protective Order for Discovery ¶ 1(i) at 3-4, United States v. Domingo, CR 19-313 (C.D. Cal. July 8, 2019), ECF No. 30-1.
"In performing [counsel's] various duties, . . . it is essential that [counsel] work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Hickman v. Taylor, 329 U.S. 495, 510, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The Government has failed to show good cause to require that Conception and prospective witnesses review CI materials only with defense counsel rather than other members of the Defense Team. Such a requirement is, therefore, unwarranted.
C. In-Writing Agreement by Prospective Witnesses
The proposed order also requires that a prospective witness shown CI materials agree in writing, rather than orally, to be bound by the terms of the order. This, too, imposes an undue burden on the preparation of Conception's defense. The task of securing information or cooperation from witnesses is already challenging. Even "a reasonably diligent defense counsel" is often unable "to extract all the favorable evidence"—or, for that matter, any evidence—that "a defense witness possesses. Sometimes, a defense witness may be uncooperative or reluctant." Tennison v. City and County of San Francisco, 570 F.3d 1078, 1091 (9th Cir. 2009) (citation omitted); cf. Robert P. Mosteller et al., McCormick on Evidence § 6 (8th ed. July 2022 Update) (noting that "the judge ordinarily allows leading questioning" on direct examination of "hesitant" or "timid" witnesses). Demanding that counsel have prospective witnesses, to whom counsel may be a stranger, sign a legal document would only exacerbate the challenge. Cf. Doe v. Lepley, 185 F.R.D. 605, 607 (D. Nev. 1999) ("Surely lay witnesses will be reluctant to sign an agreement without knowing what they are to be asked, and about whom."); United States v. Garcia, 406 F. Supp. 2d 304, 306 (S.D.N.Y. 2005) (noting that "[h]ard evidence of the witness's betrayal can facilitate retaliation or intimidation of the witness" and thus deter cooperation with counsel).
The Government again fails to offer good cause to support such a burdensome and chilling condition. It asserts that the proposed order without an in-writing requirement would "do little to prevent the unauthorized dissemination of the" protected materials. (App. at 8-9.) "[W]itnesses [would] not grasp the importance of safeguarding protected information" and would "feel free to disclose it to whomever they please," and "it would be virtually impossible for the government to enforce the . . . [o]rder." (Id. at 9.) Other provisions of the proposed agreement, however, forbid witnesses from viewing or retaining any CI materials when a member of the Defense Team is not present or from taking notes. (See PPO ¶ 4(l) at 5-6.) Further, that witnesses would disregard their obligations upon only an oral rather than a written agreement is pure speculation. The Court trusts that the Defense Team will inform witnesses of their obligations and keep diligent, contemporaneous records of who has agreed to be bound by the protective order. The proposed order also requires only the defense to secure any type of agreement, let alone a written one. A rule for thee but not for me, unjustified by a material distinction, smacks of unfairness. In any event, the Government simply has not shown good cause to require an in-writing agreement.
D. Destruction or Return of CI Materials
Lastly, the proposed order requires all CI materials be either destroyed or returned to the Government "[w]ithin 30 days of the conclusion of appellate and post-conviction proceedings." (PPO ¶ 4(r) at 7.) Good cause is lacking for this requirement as well. The Government says that it is needed "to ensure that CI Materials are protected at the conclusion of this case" and that defense counsel's retention "creates [an] unnecessary risk that CI Materials will be lost or disclosed to third parties," thus "endanger[ing] a confidential informant or testifying witness." (App. at 11.) Again, defense counsel is "an officer of the court," Snyder, 472 U.S. at 644, 105 S.Ct. 2874 (citation omitted), and absent evidence to the contrary, the Court "presume[s]" that counsel would not "disregard" the duty to take adequate measures to secure the materials, Richards, 126 F. at 111. Further, the proposed requirement would prove unworkable. "The conclusion of appellate and post-conviction proceedings" is hardly clear in most criminal cases, as litigation can occur years after cases are thought to have concluded—for example, because a defendant discovers only later that the Government violated its obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to turn over exculpatory evidence or that the defendant received ineffective assistance of counsel in violation of the Sixth Amendment. And telling once more is that the Government has not insisted on this type of requirement in other cases. In short, the Government has failed to meet its burden to justify this requirement.
See, e.g., [Proposed] Protective Order ¶ 3 at 4, Domingo, No. CR 19-313, ECF No. 30-1; [Proposed] Protective Order Regarding Discovery Containing Privacy Act Information and Confidential Informant Information ¶ 5(r), (i) at 9, Alonso, No. 22-cr-00530, ECF No. 30-1.
III. CONCLUSION
For the foregoing reasons, the Government's ex parte application is DENIED IN SUBSTANTIAL PART. The Government shall resubmit a proposed protective order consistent with this Order within seven (7) days.