Opinion
Case No. 03-40098-01-SAC
November 13, 2003
MEMORANDUM AND ORDER
This case comes before the court on the following motions filed by the defendant: motion to compel discovery regarding informant; motion for disclosure of 404(b) evidence; and motion to disclose expert testimony. The government has responded. Neither party has requested an evidentiary hearing, thus the court finds as follows.
Because the government does not oppose the motion for disclosure of 404(b) evidence or the motion to disclose expert testimony and invites the court to grant these motions, the court does so. Regarding defendant's motion for discovery, the government agrees to provide most, but not all, of the requested information. The matters which the government refuses to provide are:
1)the address of the informant;
2)misdemeanor or felony convictions of the informant that do not relate to dishonesty or false statement;
3)evidence of psychiatric treatment or drug addiction, "unless the defendant was drug-addicted or under the care of a psychiatrist at the time the informant was cooperating in the instant case, in which event the government will provide any documents relating to said addiction or treatment, if obtainable, to the court for in camera review for a determination of relevance or materiality;"
The court presumes this reference to the "defendant" should instead be to the informant.
4)the extent of the informant's work in other cases and the benefit received by him in such cases.
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). Instead, the determination whether to disclose the identity of a confidential police informant 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.
A defendant seeking disclosure has the burden of proof to come forward with evidence establishing that the Roviaro criteria favor disclosure. United States v. Sinclair, 109 F.3d 1527, 1538. Mere speculation about the usefulness of an informant's testimony is insufficient. United States v. Mendoza-Salgado, 964 F.2d 993, 1001 (10th Cir. 1992).
In the present case, the government does not dispute defendant's assertion that the informant worked with law enforcement agents for at least two weeks during the investigation of this case, that he set up and conducted the alleged buys which form the bases for the charges in this case, and that his testimony and credibility, or lack thereof, are critical to the preparation of the defense. Nor does the government assert that it will not call the informant as a witness at trial.
Generally, " `[a] defendant may obtain the identity and whereabouts of an informer if his testimony might be relevant to the defendant's case and justice would best be served by disclosure.'" United States v. Leahy, 47 F.3d 396, 398 (10th Cir. 1995), quoting United States v. Reardon, 787 F.2d 512, 517 (10th Cir. 1986). The government states that disclosure of the informant's address "might endanger the informant's life," but offers no support for that supposition. Considering the governmnet's concessions, the particular circumstances of the case including the crime charged, the possible defenses, and the significance of the informer's testimony, the court finds that defendant has met its burden to show that the Roviaro criteria favor disclosure of the informant's address.
The court shall direct that, fourteen days prior to trial, the government disclose the address of the informant to defendant's counsel on the condition that counsel not share that information with anyone other than counsel's investigator, and that the investigator not share the information with anyone else, including defendant. The court shall conduct a hearing and reconsider this ruling in the event the government indicates a desire to present evidence which demonstrates that even this limited disclosure will present a danger to the safety of the informant.
Defendant's request for evidence that the informant has ever been subject to psychiatric treatment or suffered from drug addiction is denied as overbroad. The government shall provide, however, any information it obtains relating to the informant's drug-addiction or psychiatric care, if any, at or near the time he was cooperating in the instant case.
As to the remainder of those items requested by defendant and refused by the government, i.e., all prior criminal records of the informant, and the extent of his work in other cases, the defendant has cited no particularized need for the requested information except to prepare for cross-examination, and has not met his burden to show entitlement to such information.
IT IS THEREFORE ORDERED that defendant's motions for disclosure of 404(b) evidence (Dk. 17) and to disclose expert testimony (Dk. 18) are granted.
IT IS FURTHER ORDERED that defendant's motion to compel discovery regarding informant (Dk. 16) is granted in part and denied in part in accordance with the terms of this memorandum.