Opinion
Case No. 01-40081-01/02-SAC.
October 31, 2001.
MEMORANDUM AND ORDER
This case comes before the court for ruling on the following pretrial motions filed by the defendant Mark Allen Gentry: Motion to Compel Discovery of Informants (Dk. 37); Motion to Compel Disclosure of Existence and Substance of Promises of Immunity, Leniency or Preferential Treatment (Dk. 38); and Motion for Disclosure of 404(B) Evidence (Dk. 39); and on the following pretrial motions filed by the defendant James Leon Shears: Notice of Demand for Rule 404(B) Evidence (Dk. 60); Motion to Disclose Expert Testimony (Dk. 61); and Motion for Notice of Co-Conspirator Statements (Dk. 62). The government has filed two consolidated responses addressing the motions of each defendant. (Dks. 52 and 63). On October 31, 2001, the court heard oral argument on these motions. Having reviewed all matters submitted and researched the law relevant to these issues, the court issues the following ruling.
MOTION TO COMPEL DISCOVERY OF INFORMANTS (DK. 37)
The defendant represents that the Omnibus Report (Dk. 32) at ¶ 12 states that a confidential informer was involved and that the informer would be called as a witness. Conceding this is a "full discovery" case, the defendant makes this motion on "the possibility that additional discoverable information" exists relevant for impeachment purposes. The defendant makes six separate requests for information about the informant to be produced immediately.
The government responds that the informants here appear unnamed in an affidavit for search warrant. The government opposes disclosure arguing that the informants are mere tipsters who were not active participants in any criminal activity, that the defendant has not shown the informants could testify to or possess information that would be relevant or essential to a fair determination of the defendant's case, and that public policy concerns for protecting citizen-informants outweighs disclosure of the limited information held by the informants.
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, "[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 be best served by disclosure." United States v. Leahy, 47 F.3d 396, 398 (10th Cir. 1995). 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). "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).
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. "A CI's testimony must be shown to be valuable to a defendant; mere speculation is not enough." United States v. Leahy, 47 F.3d at 398. "`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 (Kan. 1993).
In determining whether to require disclosure, the court balances the public interest in protecting the flow of information against the individual's right to prepare his defense. The defendant Gentry has not met his burden to show that the informant's testimony is valuable to the fair defense of his case in light of the government's assertion that the informants have limited information, were not present when the charged activity occurred, were not active participants in any criminal activity, and were mere tipsters. Contrary to the defendant's representation, the Omnibus Report states that the government will not call the informant as a witness at trial. Under these circumstances, the public interest in encouraging the free flow of information between citizens and law enforcement officers outweighs the defendant's need for the identity of the informant. This motion will be denied.
MOTION TO COMPEL DISCLOSURE OF EXISTENCE AND SUBSTANCE OF PROMISES OF IMMUNITY, LENIENCY OR PREFERENTIAL TREATMENT (Dk. 38)
The government agrees to provide this requested information on the prosecution's witnesses. In light of the government's agreement, the court considers this motion to be moot and directs the government to disclose this information in a timely manner and no later than November 15, 2001.
REQUESTS FOR RULE 404(B) EVIDENCE (Dks. 39 and 60).
Both defendants request the court to order the government to disclose any prior convictions or criminal activity attributed to them that it intends to offer at trial pursuant to Rule 404(b) of the Federal Rules of Evidence. The defendant Shears further requests notice of any evidence the government intends to offer pursuant to Rule 807. The government does not oppose either request and agrees to furnished the requested information "reasonably in advance of trial." Based on the government's response, the court denies these requests as moot and directs the government to furnish the information promptly and no later than November 15, 2001.
MOTION TO DISCLOSE EXPERT TESTIMONY (Dk. 61)
The defendant Shears seeks an order requiring the prosecution to disclose whether it intends to rely on expert testimony and, if so, to identify and disclose the content and bases of such expert testimony pursuant to Fed.R.Crim.P. 16(a)(1)(E). The government advises that it does intend to rely on expert testimony at trial and that it agrees to identify reasonably in advance of trial the content and bases of such testimony as required by Rule 16(a)(1)(E). Based on the government's response, the court denies the defendant's motion as moot and directs the government to furnish the information promptly and no later than November 15, 2001.
MOTION FOR NOTICE OF CO-CONSPIRATOR STATEMENTS (Dk. 62)
The defendant Shears requests the government to identify any co-conspirator statements that the government intends to offer at trial pursuant to Fed.R.Evid. 801(d)(2)(E). The government advises that it has provided in discovery all co-conspirator statements known to it. The court denies the motion as moot.
IT IS THEREFORE ORDERED that the defendant Mark Allen Gentry's Motion to Compel Discovery of Informants (Dk. 37) is denied;
IT IS FURTHER ORDERED that the defendant Mark Allen Gentry's Motion to Compel Disclosure of Existence and Substance of Promises of Immunity, Leniency or Preferential Treatment (Dk. 38); and Motion for Disclosure of 404(B) Evidence (Dk. 39); and the defendant James Leon Shears' Notice of Demand for Rule 404(B) Evidence (Dk. 60); Motion to Disclose Expert Testimony (Dk. 61); and Motion for Notice of Co-Conspirator Statements (Dk. 62) are denied as moot and the government is directed to provide the requested information promptly and no later than November 15, 2001.