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refusing to compel discovery on the confidential informant in a case factually similar to this one
Summary of this case from U.S. v. Renteria-LopezOpinion
Case No. 01-40007-01-SAC.
July 19, 2001.
MEMORANDUM AND ORDER
This case comes before the court for ruling on the defendant's Motion to Compel Discovery Regarding Informant (Dk. 19). The court, having heard the in camera presentation, is now ready to make its ruling.
On May 14, 2001, the defendant filed the instant motion requesting that he receive information related to the confidential informant. The government opposed that motion claiming that the informant's testimony would only be cumulative and that the informant would not be called as a witness. The defendant is currently charged in count two of the indictment with knowingly and intentionally distributing .3 grams of crack cocaine to the confidential informant in this case. On May 25, 2001, the court heard evidence related to the defendant's motions and deferred ruling to take the motions under advisement. On June 12, 2001, the court issued an order related to the defendant's pretrial motions. In that order the court directed the government to produce the confidential informant for an in camera hearing to determine whether the informant had any useful information to provide the defendant that would justify disclosing the identity of the confidential informant.
On June 27, 2001, the court heard in camera an initial report and presentation from the government. The government presented the confidential informant for an in camera hearing on July 17, 2001. At which time, the confidential informant testified about his or her knowledge and participation in the events leading to the charges in count two, as well as, his or her prior involvement with the defendant and his or her familiarity with gangs in Lawrence and the defendant's affiliation with the gangs.
Having received this evidence the court finds that the defendant's motion to compel the disclosure of information related to the informant in this case should be denied. Any meaningful testimony or information to be offered from the confidential informant would be cumulative of that to be offered through the undercover officer as reflected in the different police reports. Moreover, the informant's testimony regarding these matters would not be favorable to the defendant. The government has come forth with sufficient evidence showing that the disclosure of the informant's identity would create a significant risk of retaliation against the informant. The informant's testimony demonstrated both familiarity with and knowledge of local gangs and the their violent and vindictive natures. The informant expressed serious concern for the informant's welfare and for those close to the informant if his or her identity were disclosed now. From the in camera hearing, the court learned of the informant's involvement in other drug investigations and expectation of continuing involvement. The court is mindful that it must weigh the public's interest in the flow of information against the defendant's right to prepare his or her defense. Rovario v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957). In this case, the court finds that in weighing these competing rights, the balance tips towards non-disclosure of the identity of the informant. This is so, particularly in light of the fact that the informant's testimony would merely be cumulative to that offered by the undercover officer involved in the transaction and would not be helpful in any way to the defendant.
IT IS THEREFORE ORDERED that the defendant's Motion to Compel Discovery Regarding Informant (Dk. 18) is denied.
NOTICE OF JURY TRIAL UNITED STATES DISTRICT COURT for the DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
vs. Case No. 01-40007-01-SAC
MICHAEL ALAN FOLSOM.
TAKE NOTICE that the above-entitled case is set for jury trial, on August 22, 2001, at 1:30 p.m., at the U.S. Courthouse, 444 S.E. Quincy, Room 404, Topeka, Kansas before the Honorable Sam A. Crow, U.S. Senior District Judge.
Date: July 20, 2001
RALPH L. DeLOACH, Clerk
By _________________________ Brenda M. Wessel Deputy Clerk
To: Thomas G. Luedke Marilyn M. Trubey U.S. Probation U.S. Marshal
NOTE: The status conference is scheduled for August 9, 2001, at 1:30 p.m., in Judge Crow's chambers.
Counsel shall meet in chambers at 1:00 p.m., August 22, 2001, before the selection of the jury.