Opinion
Crim. No. EP-03-CR-1823(KC)
January 15, 2004
ORDER
The following motions are pending before this Court: (1) defendant's motion in limine for an order instructing the Government not to mention prior convictions or uncharged misconduct, (2) defendant's motion for identification of and equal access to Government informant-witness for interview or extraneous act, (3) defendant's motion for pre-trial production of all Jencks Act Material, (4) defendant's motion to compel disclosure of the identity of a confidential informant and (5) defendant's motion for pre-trial disclosure of all evidence the Government intends to offer.
I. MOTION IN LIMINE
Defendant moves for an order instructing the Government not to offer evidence of convictions or uncharged misconduct in violation of Federal Rules of Evidence 403, 404, 608 or 609. Ruling on this motion is deferred and shall be resolved immediately prior to trial.
II. MOTION FOR IDENTIFICATION OF AND EQUAL ACCESS TO GOVERNMENT INFORMANT-WITNESS
Defendant argues that the Government should be ordered to identify and produce for interview a confidential informant who interviewed defendant regarding a 1998 income tax return filed by Beatriz Corral. At present, defendant does not go so far as to provide a copy of the "Internal Revenue Service Memorandum of Interview" dated December 5, 2003, which was provided to defendant, and which referred to the informant.
Defendant argues that the information derived from the interview would be useful in establishing a defense, specifically entrapment, and it therefore would affect her ability to pursue a meaningful defense, California v. Trombetta, 467 U.S. 479, 485 (1984). On the surface, it is not apparent how the identity of an informant, who appears not to be an IRS agent, would be germane to a defense of entrapment by virtue of an interview in which defendant allegedly handed documents and discussed an income tax return. The defense of entrapment is limited, involving primarily an inquiry into both defendant's predisposition to commit the crime charged and secondarily governmental conduct. See United States v. Webster, 649 F.2d 346, 348-49 (5th Cir. 1981). Defendant in no way articulates nor provides evidence tending to show how the document exchange or interview implicates either inquiry relevant to establishing entrapment.
There is a three-part test to determine whether disclosure of an informant's identity is warranted. United States v. Toro, 840 F.2d 1221, 1232 (5th Cir. 1988) (describing test evaluating "level of the informant's involvement in the alleged activity," "the helpfulness of disclosure to the asserted defense" and "the government's interest in nondisclosure"). Defendant bears the burden of establishing the need for disclosure of the informant's identity. United States v. Diaz, 655 F.2d 580, 588 (5th Cir. 1981) ("defendant seeking to compel disclosure must make a sufficient showing that the informer's testimony would significantly aid the defendant in establishing the asserted defense"). As she has failed to carry such burden, and it is not otherwise apparent how information derived from the informant's identity would in any way substantiate an entrapment defense, the motion is denied. Defendant may renew the present motion if, in light of the above discussion, she can establish that the informant's identity is relevant. As this Court presently is unclear why the informant's identity would require confidentiality, defendant is encouraged to discuss the matter with the Government prior to refiling the motion.
III. DEFENDANT'S MOTION FOR PRE-TRIAL PRODUCTION OF ALL JENCKS ACT MATERIAL
Defendant moves for an order requiring that the Government produce all material as required by the Jencks Act, 18 U.S.C. § 3500. The Government was contacted and represents that it has produced all required material. As such, the motion is denied as moot with leave to refile should all required material not be produced.
IV. DEFENDANT'S MOTION TO COMPEL DISCLOSURE OF IDENTITY OF CONFIDENTIAL INFORMANT
Defendant's motion to compel the identity of a confidential informant appears to be substantially the same as that addressed forth in Part II, supra, adding only that defendant wants the Government to produce a document containing writing described in the memorandum. The informant's identity will not be ordered disclosed for the same reasons set forth in Part II. As for the document, if the Government possesses the document described, it is obligated to produce the same pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E)(iii) and shall do the same if it has not done so already. The motion is granted in part.
V. DEFENDANT'S MOTION FOR PRE-TRIAL DISCLOSURE OF ALL EVIDENCE THE GOVERNMENT INTENDS TO OFFER
Defendant moves for an order requiring that the Government disclose all material the Government intends to offer pursuant to Federal Rule of Evidence 404(b), pertaining to evidence of other crimes, wrongs, or acts. The Government represents that it has provided all such material, and is presumed to have done so as required by the discovery order applicable to the present case and Federal Rule of Criminal Procedure 16(a)(1)(D). The motion is therefore denied as moot with leave to refile should all required material not be produced.
VI. CONCLUSION
Defendant's motion for identification of and equal access to Government informant-witness for interview or extraneous act (Doc. No. 71) is denied, defendant's motion for pre-trial production of all Jencks Act Material (Doc. No. 72) is denied as moot, defendant's motion to compel disclosure of the identity of a confidential informant (Doc. No. 74) is granted in part and defendant's motion for pre-trial disclosure of all evidence the Government intends to offer pursuant to Federal Rule of Evidence 404(b) (Doc. No. 76) is denied as moot.
SO ORDERED.