Opinion
Case No. 01-40122-01.
March 18, 2002.
MEMORANDUM AND ORDER
This case comes before the court on three motions of the defendant: motion for disclosure of 404(b) and relevant conduct evidence (Dk. 17); motion to disclose expert testimony (Dk. 18); and motion to compel discovery regarding informants (Dk. 19).
I. Unopposed Motions
The government has responded that it does not oppose defendant's motion for disclosure of 404(b) evidence or defendant's motion to disclose expert testimony. The government adds that it does intend to call an expert or experts, and that it will identify the content and bases of such testimony as required by Fed.R.Crim.P. 16(a)(1)(E) "in a timely manner and reasonably in advance of trial."
At the hearing, defendant requested and the government agreed to produce the information sought by virtue of these motions no later than 14 days before trial. The court shall require the government to do so.
II. Motion to compel discovery regarding informants (Dk. 19).
By this motion, defendant seeks to compel the government to disclose much information regarding two informants alleged to have purchased cocaine base from him. Defendant seeks their names and addresses, their prior record, any promised immunities or agreements or payments, any memoranda of communications between the informants and government agents, any results of polygraph examinations, the extent of the informants' work in other cases, and other similar matters. At the hearing regarding this matter, counsel for the defendant stated her belief that one confidential informant, who is now deceased, was used during March of 1999, but that police reports indicate the involvement of a second confidential informant on or after June of 2000.
The court later received a letter from defense counsel, indicating that she had "misspoken" and that the second informant was not actually present during two of the charged offenses.
The government responds that there is only one confidential informant, and that the informant purchased crack cocaine from the defendant on the dates relating to Counts 1-4 of the indictment, but that the remaining purchases, on which Counts 5-7 are based, were made solely by law enforcement officers without the presence of any confidential informant.
Neither party has given the court any factual basis by which it could possibly determine whether one or two confidential informants participated in the charged offenses. The court believes, however, that counsel for the government is in a better position to know how many confidential informants were in fact used, and will thus accept its representation that only one confidential informant participated in the charged offenses. The remainder of this opinion proceeds upon the assumption that only one confidential informant was in fact a witness, as opposed to a mere tipster, to the events upon which the charged offenses are based.
This is particularly appropriate because defense counsel has conceded that she was in error regarding the presence of the second informant at the alleged transactions.
The government states that "under normal circumstances the government would not oppose the defendant's request, because the informant was a witness, not merely a tipster. But this case is different because the informant is dead." (Dk. 2, p. 6.) The government contends that pursuant to Roviaro v. United States, 353 U.S. 53, 59 (1957), defendant's motion for disclosure should be denied because since the informant is dead, defendant cannot be of any assistance to the defense and will not be called as a witness for the government.
In Roviaro, 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.
The government's position finds some support in United States v. Martinez, 979 F.2d 1424, 1429 (10th Cir. 1992), cert. denied, 507 U.S. 1022 (1993), which held that "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." The government's position is not supported by Roviaro, however, and based upon language in Roviaro, the court does not believe that the holding in Martinez or other cases in which the informant is alive should control the determination whether to disclose the identity of an informant who is dead.
Roviaro expressly states that where an informant is dead, the government's privilege not to disclose the identity of a confidential informant ceases to exist.
The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. (footnote omitted). Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.[8]
[8] (Citations omitted.) The record contains several intimations that the identity of John Doe was known to petitioner and that John Doe died prior to the trial. In either situation, whatever privilege the Government might have had would have ceased to exist, since the purpose of the privilege is to maintain the Government's channels of communication by shielding the identity of an informer from those who would have cause to resent his conduct. The Government suggests that if petitioner knew John Doe's identity, the court's failure to require disclosure would not be prejudicial even if erroneous. (Citation omitted). However, any indications that petitioner, at the time of the trial, was aware of John Doe's identity are contradicted by the testimony of Officer Bryson that John Doe at police headquarters denied knowing, or ever having seen, petitioner. The trial court made no factual finding that petitioner knew Doe's identity. On this record we cannot assume that John Doe was known to petitioner, and, if alive, available to him as a witness. Nor can we conclude that John Doe died before the trial.353 U.S. at 59, and n. 8. (bold added). Thus, according to the very case that created the privilege upon which the government relies, the privilege ceases to exist when the confidential informant dies. The government has no need to protect a confidential informant's identity at that point.
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). The defendant has met its burden in this case, and counsel for the government conceded at the hearing that it would provide the requested information pursuant to Roviaro if the informant were not dead. Counsel for the government additionally stated during oral argument of this motion that it has information such as an agreement between the informant and the government, or evidence of a quid pro quo, relative to the confidential informant's participation in this matter. Because the government has articulated no interest in keeping the identity of this dead informant confidential, the requested information shall be produced.
IT IS THEREFORE ORDERED that defendant's motion for disclosure of 404(b) and relevant conduct evidence (Dk. 17) and motion to disclose expert testimony (Dk. 18) are denied as moot, and that the government shall provide the requested information to counsel for the defendant no later than 14 days prior to trial.
IT IS FURTHER ORDERED that defendant's motion to compel discovery regarding informants (Dk. 19) is granted.