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No. 01-400007-01-SAC
June 12, 2001
MEMORANDUM AND ORDER
The case comes before the court on the defendant's following pretrial motions: Motion to Suppress Evidence and Statement (Dk. 15), Motion to Suppress Statement (Dk. 16), Motion for Disclosure of Rule 404(b) and Relevant Conduct Evidence (Dk. 17), and Motion to Compel Discovery Regarding Informant (Dk. 18). The government has filed a consolidated response to these motions. (Dk. 19). The court heard the parties' evidence and arguments on May 25, 2001.
INDICTMENT
Michael Alan Folsom is the only named defendant in a two-count indictment charging two drug offenses. Count one alleges that on April 18, 2000, the defendant possessed with the intent to distribute approximately 10.28 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). Count two alleges that on September 1, 1999, the defendant distributed approximately 3 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C).
MOTION TO SUPPRESS EVIDENCE AND STATEMENT (Dk. 15)
Arguments
The defendant seeks to suppress items seized on April 18, 2000 from a car belonging to Lorri Coleman, Mr. Folsom's personal belongings found in the car, and Mr. Folsom's statements made to officers following his arrest. The defendant contends the officers prevented him from entering the car and thus seized him without any reasonable cause for believing that the defendant or Ms. Coleman had any knowledge of the robbery being investigated. The defendant further argues the officer's had no reasonable belief that the defendant was either a witness to or suspect in the recent robbery. Without such basis for otherwise detaining him, the defendant maintains the officers unlawfully stopped and seized him.
Facts
There is no dispute that on April 18, 2001, Detectives M. T. Brown and Jack Cross with the Lawrence Police Department responded to a radio call about a possible robbery in the parking lot of the Dairy Queen located at 2545 Iowa Street in Lawrence, Kansas. They began patrolling the area for suspects or for persons who may have witnessed the robbery or seen the suspects. Just minutes after receiving the call, the detectives were driving through the parking lot of Southpointe Apartments, located immediately west of the Dairy Queen, when they saw the defendant and Lorri Coleman. The detectives recognized the defendant as the person they had arrested less than a week earlier for possession of marijuana during a traffic stop. The detectives also recognized Ms. Coleman from prior contacts. The detectives stopped their unit and considered whether the defendant and Ms. Coleman would cooperate in telling whether they had seen or heard anything relevant to the robbery.
The detectives watched the defendant and Ms. Coleman walk from the apartment building towards Ms. Coleman's parked car. The defendant was carrying a small child in his left arm and was grasping a C.D. case with his right hand. The defendant opened the passenger door. Thinking that the defendant or Ms. Coleman may have seen someone in the area, the detectives decided to approach them. Detective Cross put the car in reverse and began backing up in their direction when he noticed the defendant Folsom, who was standing on the passenger side of Ms. Coleman's car with the door open, reach into his waistband with his right hand, pull out an object, and throw it down onto the car's floor board. Detective Cross thought this object was dope and told Detective Brown the same as he was backing up.
Detective Cross eventually stopped the car and walked up to the defendant while Detective Brown walked up to Ms. Coleman. The defendant was standing against the opened passenger door, and Ms. Coleman was on the driver's side. As he approached, Detective Cross greeted the defendant and saw laying on the floor board near the defendant a bag of what appeared to be crack cocaine. Because the defendant had fled the week before, Detective Cross asked Detective Brown to join him and assist with the child that the defendant was holding before Cross said anything about an arrest. Instead of handing over the child to Detective Brown as requested, the defendant gave the child to Ms. Brown. At that point, Detective Cross placed the defendant under arrest for possession of crack cocaine and Detective Brown handcuffed the defendant. Prior to the arrest, the detectives had not detained the defendant or Ms. Coleman, had not instructed them not to leave, and had not otherwise restricted their freedom of movement.
Relevant Law and Analysis
As established by Supreme Court precedent, there are three general types of police-citizen encounters: "(1) consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; and (3) arrests, [which are] the most intrusive . . . and [are] reasonable only if supported by probable cause." United States v. Davis, 94 F.3d 1465 1467-68 (10th Cir. 1996) (citations omitted). "A consensual encounter is the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement officer." United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996). Supreme Court precedent is clear "that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free `to disregard the police and go about his business,' the encounter is consensual.'" Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)). "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968).
In deciding if a police-citizen encounter amounts to a seizure, "the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would `have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" United States v. Hill, 199 F.3d 1143, 1147 (10th Cir. 1999) (quoting Bostick, 501 U.S. at 437), cert. denied, 121 S.Ct. 83 (2000). Put another way, "[a] person is seized only when that person has an objective reason to believe he or she is not free to end the conversation with the officer and proceed on his or her way." United States v. Hernandez, 93 F.3d at 1498 (citation omitted). No per se or absolute rules govern this inquiry. See Ohio v. Robinette, 519 U.S. 33, 39 (1996). "Rather, every case turns on the totality of the circumstances presented." United States v. Little, 18 F .3d 1499, 1503 (10th Cir. 1994). Factors identified as relevant to whether a reasonable person would not feel free to terminate the encounter with police include:
the threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; prolonged retention of a person's personal effects such as identification and plane or bus tickets; a request to accompany the officer to the station; interaction in a nonpublic place or a small, enclosed place; and absence of other members of the public.United States v. Sanchez, 89 F.3d 715, 718 (10th Cir. 1996). No one factor is dispositive in this analysis. United States v. Glass, 128 F.3d 1398, 1406 (10th Cir. 1997).
The detectives here did not confront the defendant in a confined place. The encounter occurred in an apartment complex parking lot apparently open to public view. There was nothing in the manner of backing up their detective unit and approaching the defendant on foot that was intimidating, menacing, or coercive. They were not displaying their weapons and shouted no orders or questions. Only Detective Cross approached the defendant. Before spotting the crack cocaine on the floor board, Cross neither said nor did anything that would have communicated to a reasonable person that he was not free to ignore the detectives and go about his business. The evidence shows Detective Cross, at most, greeted the defendant while walking towards him. Although the defendant was not advised that he was free to go, there is no per se rule that requires an advisement that the defendants are free to leave. See United States v. Little, 18 F .3d at 1505 ("There is no per se rule requiring such an advisement."); see also United States v. Anderson, 114 F.3d 1059, 1064 (10th Cir. 1997) ("While [the officer] did not specifically tell [defendant] that he was free to leave, that is not required for an encounter to be consensual."). There is no evidence that the detectives had blocked the defendant's exit from the area by foot or car or his access to the interior of the car. Cf. United States v. Kim, 27 F.3d 947, 952 (3d Cir. 1994) (noting among factors contributing to conclusion that encounter was consensual was fact that officer did not block exit), cert. denied, 513 U.S. 1110 (1995). Bearing in mind that no single factor is determinative, we conclude that the totality of the circumstances surrounding the encounter between the defendant and the detectives was consensual until Detective Cross observed the package of crack cocaine on the floor board. At that point, Detective Cross had probable cause that criminal activity was occurring and properly arrested the defendant. The defendant's motion to suppress evidence and statement (Dk. 15) is denied.
MOTION TO SUPPRESS STATEMENT (Dk. 16)
Arguments
The defendant contends his statements to officers following his arrest were involuntary, because officers threatened to arrest Ms. Coleman if he did not give an inculpatory statement. The defendant says that he made a false inculpatory statement out of fear that officers would follow through on their threat and arrest Ms. Coleman, leaving the child without any parental care. The defendant insists his statement was involuntary having been extracted by the unfounded and improper threat to arrest Ms. Coleman.
Facts
Following his arrest, the defendant was handcuffed, escorted to the detectives' car, and placed in the front passenger seat. Detective Brown obtained background information from him and then asked whether it was worth their time to read the defendant his rights or whether he would simply ask for a lawyer or refuse to talk as he had done on an earlier occasion. The defendant told Brown to go ahead and read him his rights. After Detective Brown read the rights, the defendant affirmatively answered that he understood his rights and that he wanted to waive his rights and talk with the detectives. Detective Brown denies that he made any statement about possibly arresting Ms. Coleman or that he took any coercive action in order to induce the defendant's waiver. After the waiver, Detective Brown interviewed the defendant in the detectives' car. The defendant initially admitted it was his marijuana in the C.D. case but denied it was his crack cocaine. Detective Brown told the defendant that he did not believe the defendant about the crack cocaine and that no one else would believe him. Eventually, the defendant admitted to possessing the crack cocaine.
Relevant Law and Analysis
A suspect who has been informed of his Miranda rights "may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently." Miranda v. Arizona, 384 U.S. 436, 444 (1966). The government bears the burden of proving by a preponderance of the evidence that the defendant's waiver of rights was voluntary. United States v. Toro-Pelaez, 107 F.3d 819, 825 (10th Cir.), cert. denied, 522 U.S. 845 (1997). This entails proof: "`(1) that the waiver was the product of free and deliberate choice rather than intimidation, coercion, or deception; and (2) that the waiver was made in full awareness of the nature of the right being waived and the consequences of waiving.'" Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). "Only if the totality of the circumstances surrounding the interrogation shows both an uncoerced choice and the requisite level of comprehension can a waiver be effective." Id. (citing United States v. Hernandez, 93 F.3d at 1501).
In considering whether the confession or statement is one of free will, the courts look to several factors, including: (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. See United States v. Toro-Pelaez, 107 F.3d at 825-26; United States v. Glover, 104 F.3d 1570, 1579 (10th Cir. 1997); United States v. Chalan, 812 F.2d 1302, 1307 (10th Cir. 1987), cert. denied, 488 U.S. 983 (1988). "In no case, however, is any single factor determinative." Chalan, 812 F.2d at 1307. Once the defendant validly waives his Miranda rights, interrogation may continue until the defendant invokes his rights or changed circumstances suggest the responses have become involuntary. United States v. Abreu, 730 F. Supp. 1018, 1030 (D.Colo. 1990), aff'd, 935 F.2d 1130 (10th Cir.), cert. denied, 502 U.S. 897 (1991).
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. 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)).
Even when a defendant's Miranda rights are not violated, the court must still conduct a Fifth Amendment inquiry into the voluntariness of any statements. United States v. Roman-Zarate, 115 F.3d 778, 783 (10th Cir. 1997). The court looks to the totality of the circumstances in determining whether the statements were voluntary. United States v. Glover, 104 F.3d at 1579. "[A] defendant's statement that is extracted or induced by threats or promises is involuntary." United States v. Hernandez, 93 F.3d at 1503) (citing Hutto v. Ross, 429 U.S. 28, 30 (1976)). "Incriminating statements obtained by government acts, threats, or promises that permit the defendant's will to be overborne are coerced confessions running afoul of the Fifth Amendment. . . ." Griffin v. Strong, 983 F.2d 1540, 1543 (10th Cir. 1993) (quoting United States v. Short, 947 F.2d 1445, 1449 (10th Cir. 1991), cert. denied, 503 U.S. 989 (1992)). "Coercion may involve psychological threats as well as physical threats." United States v. Finch, 998 F.2d 349, 356 (6th Cir. 1993). Unfounded "threats to arrest members of a suspect's family may cause a confession to be involuntary." Id. (citing Rogers v. Richmond, 365 U.S. 534 (1961)); see Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (threats to a defendant mother, unsophisticated in criminal law, that state financial aid to her infant children would be cut off and her children taken from her if she failed to cooperate rendered her confession involuntary). However, merely exhorting the defendant to start telling the truth does not render his confession involuntary. United States v. Bailey, 979 F. Supp. 1315, 1318 (D.Kan. 1997); see United States v. Chalan, 812 F.2d at 1307 (defendant's confession was voluntary despite law enforcement officer's exhortations to tell the truth); United States v. Morgan, 911 F. Supp. 1340, 1350 (D.Kan. 1995) (mere exhortations by law enforcement officers to tell the truth are not sufficient to render a defendant's statements involuntary).
The uncontroverted testimony of Detective Brown establishes that the defendant's waiver of his Miranda rights was the product of free and deliberate choice rather than intimidation, coercion, or deception and was made in full awareness of the nature of the rights being waived and the consequences of waiving them. There is no evidence concerning the defendant's characteristics, the circumstances surrounding the statements or the tactics used by Detective Brown thing that would support any proposition of an involuntary waiver of Miranda rights or an involuntary statement. That the defendant had prior experience with Miranda warnings and had invoked his rights on a previous occasion is a circumstance of some significance. There is no credible evidence that Detective Brown made any threat to the defendant and his exhortation to tell the truth does not render the defendant's statement involuntary. The totality of circumstances convince this court that the defendant voluntarily, knowingly, and intelligently waived his Miranda rights and then voluntarily answered Detective Brown's questions about his connection to the drugs found in the car. The defendant's motion to suppress statement (Dk. 16) is denied.
DISCLOSURE OF RULE 404(b) AND RELEVANT CONDUCT EVIDENCE (Dk. 17)
In its motion, the defendant asks the court for an order directing the government to disclose any evidence it intends to introduce against him pursuant to Rule 404(b) and to disclose any evidence of relevant conduct as defined by U.S.S.G. § 1B1.3. The government responds in writing that it has provided the defendant with the information regarding his criminal history and the evidence of prior incidents related to possession and trafficking in illegal narcotics that it intends to use under Rule 404(b). The government further responds that neither rule nor case law requires the disclosure of relevant conduct evidence but offers to disclose the same information when plea negotiations commence. The government also notes that the defendant did not comply with the court's rule of first contacting the government before filing a discovery motion.
At the hearing, the defendant argued that the government's written response did not satisfy the notice requirements of Rule 404(b). The government's counsel then represented that he did not know there to be any Rule 404(b) evidence, that he did not anticipate offering any at trial, that he turned over all information to the defendant, and that if any Rule 404(b) evidence surfaced then it would be supplied to the defendant.
In compliance with the court's criminal procedural guidelines, the defendant should confer first with the government's attorney before filing a formal motion pursuant to Rule 404(b). Based on the government's representations at the hearing, the court denies the defendant's Rule 404(b) motion as moot.
The defendant cites no authority recognizing a general right to pretrial discovery of relevant conduct evidence as defined by U.S.S.G. § 1B1.3. It is true that this court in ruling on objections to the presentence report in United States v. Ransom, No. 00-40003-01-SAC, observed that:
"[t]he Sentencing Commission encourages the prosecuting attorney prior to the entry of the plea of guilty . . . to disclose to the defendant the facts and circumstances of the offense and offender characteristics, then known to the prosecuting attorney, that are relevant to the application of the sentencing guidelines. This recommendation, however, shall not be construed to confer upon the defendant any right not otherwise recognized in law." U.S.S.G. § 6B1.4, p.s. comment. Such a practice plainly furthers plea bargaining in that it provides defendants with some reasonable basis for assessing the costs and benefits of entering a guilty plea and also offers defendants some assurance that they will not be "blindsided" by information the prosecutor chose to withhold earlier. See United States v. Normil, 129 F.3d 1261, 1997 WL 705373, at *3-*4 (4th Cir. Nov. 13, 1997) (Table).
The government's attorney here openly recognizes the value of disclosing relevant conduct information during plea negotiations and represents that he will do so here when such negotiations commence. Under these circumstances, the court declines the defendant's request for disclosure of relevant conduct evidence.
COMPEL DISCOVERY REGARDING INFORMANT (Dk. 18)
The defendant seeks to learn the identity and possible impeachment evidence concerning the informant who is alleged to have purchased cocaine base from the defendant on September 1, 1999, as charged in count two of the indictment. The government opposes disclosure arguing that the defendant has offered no specific need to learn the informant's identity. The government does not intend to call the informant as a witness though he or she was a participant in the events underlying count two. The government explains that the drug deal was tape recorded through a microphone worn by the informant and also was observed by officers. Thus, the informant's testimony about the deal, at best, would be cumulative. The government argues the defendant has not provided the court with any information or reason to think that the informant's testimony would be helpful to the defendant. Finally, the government dismisses any argument that the informant's credibility can be a valid issue when the informant is never called as a witness at trial.
At the hearing, the defendant reiterated his position that disclosure is necessary if the informant was a participant in the alleged offense. He argued that the transcript of the audiotape is "sketchy" and lacks either exculpatory or inculpatory information. Though the government does not intend to call the informant as a witness, the defendant said it was possible that he would call the informant as a witness in order to preserve his Fifth Amendment right.
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, the Tenth Circuit requires disclosure when the informant's testimony "might be relevant to the defendant's case and justice would best be served by disclosure." United States v. Reardon, 787 F.2d 512, 517 (10th Cir. 1986). 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).
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. "`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).
"[D]isclosure of an informant is not required simply because the informant has taken an active role in the criminal transaction." United States v. Martinez, 979 F.2d at 1428. The court still must balance the respective factors:
The scales are tipped toward disclosure only when the combination of circumstances, including the charge, the possible defenses, the significance of the informant's testimony, and other relevant factors, dictates disclosure over secrecy. Roviaro, 353 U.S. at 62; [ United States v.] Moralez, 908 F.2d [565] at 567 [(10th Cir. 1990)]. When, as here, the district court conducts an in camera hearing which discloses the informant will directly controvert asserted defenses or, at least will provide no exculpatory information, the scale tips toward nondisclosure, regardless of the role played by the informant. When it is clear 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. Straughter, 950 F.2d 1223, 1232 (6th Cir. 1991), cert. denied, 502 U.S. 1119 (1992).
Defendants argue they should have had the opportunity to question the informant to establish his bias and impeach his testimony. Defendants' argument again is essentially grounded in speculation. Our examination of the in camera evidence discloses nothing that would support the defendants' suggestion they could have impeached the informant, particularly when his testimony was not used in the first place. See United States v. Curtis, 965 F.2d 610, 614 (8th Cir. 1992). Of equal importance, then, is the fact that Juan Carlos [the informant] was not a declarant within the meaning of Fed.R.Evid. 806 and not subject to impeachment.
979 F.3d at 1428-29. In United States v. Ridley, 831 F. Supp. 808 (D.Kan. 1993), this court faced a similar situation, conducted an in camera examination of the undercover agent and the informant and balanced the relevant factors:
The court realizes the case law generally requires the government to disclose the identity of the informant who assists in arranging the commission of the offense and is then present when it is committed. See, e.g., Roviaro v. United States, 353 U.S. 53, 61 (1957); DiBlasio v. Keane, 932 F.2d 1038, 1042 (2nd Cir. 1991); U.S. v. Price, 783 F.2d 1132, 1138-39 (4th Cir. 1986). Unlike Roviaro, the informant here was not the sole participant other than the defendant, and he did not actually negotiate and conduct the transaction. After arranging the meeting, his participation was limited to driving the vehicle to the scene and observing the exchange. This minimal participation does not require disclosure.See U.S. v. Kerris, 748 F.2d 610, 614 (11th Cir. 1984). Unlike DiBlasio and Price, the informant's testimony is not critical to any asserted defense of entrapment. Indeed, the defendants have not shown how disclosure would assist substantively their defense to the charge. The mere statement that the testimony might be helpful is not enough. U.S. v. Moore 954 F.2d 379, 381 (6th Cir. 1992). The defendants cannot meet their burden by simple conjecture or speculation on the usefulness of knowing the informant's identity. U.S. v. Blevins 960 F.2d 1252, 1259 (4th Cir. 1992).
Balancing the informant's minimal involvement in the transaction, the speculative helpfulness of disclosure, the inculpatory testimony given by the informant at the in camera hearing, and the government's compelling interest in nondisclosure, the court concludes the defendants are not entitled to disclosure of the informant's identity or the other information about him that they requested in their original motions.
Under Roviaro, the informant's presence at the transaction is generally important, but here the factor is not as significant here because the entire transaction was not only audiotaped but also was the subject of officers' surveillance. Therefore, the informant's testimony on what was said and happened would be cumulative in most respects. It is the defendant's burden to show some basis or reason for believing that the informant could testify to matters that would clarify, explain or contradict information contained on the audiotape of the transaction or the transcript of the same; that the informant could testify to matters contradicting information found in police reports; or that the informant could testify to matters relevant to a possible defense to this charged transaction. Calling the transcript "sketchy" or speculating on possible testimony without giving any basis for doing so simply does not suffice.
On the other hand, the informant's central role in the charged drug transaction and the probative value of the informant's possible testimony remain critical factors. United States v. Ridley, 814 F. Supp. at 996. For that matter, the government has not articulated any unique circumstances or concerns for keeping secret the informant's identity. The prudent course here is to conduct an in camera hearing with the confidential informant present to determine whether the informant could give any non-cumulative testimony that would be relevant or helpful to a material issue or defense regarding the defendant's innocence or guilt. At that hearing, the government also will be expected to articulate its particular concerns for protecting this confidential informant. The government's counsel and the confidential informant shall present themselves to the court's chambers on June 19, 2001, at 10:30 a.m., for an in camera hearing on these matters. The court takes under advisement the defendant's motion to compel discovery regarding informant and will issue its ruling after the in camera hearing.
IT IS THEREFORE ORDERED that the defendant's Motion to Suppress Evidence and Statement (Dk. 15) is denied;
IT IS FURTHER ORDERED that the defendant's Motion to Suppress Statement (Dk. 16) is denied;
IT IS FURTHER ORDERED that the defendant's Motion for Disclosure of Rule 404(b) and Relevant Conduct Evidence (Dk. 17) is denied;
IT IS FURTHER ORDERED that the defendant's Motion to Compel Discovery Regarding Informant (Dk. 18) is taken under advisement pending an in camera hearing.