IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA :
:
v. : CRIM. NO. xx-451 (RCL)
:
xxxxxxxxx xxxxxxxxxx, :
:
Defendant. :
______________________________:
MOTION FOR DISCLOSURE OF CONFIDENTIAL
INFORMANT AND EXCULPATORY INFORMATION AND
INCORPORATED MEMORANDUM OF POINTS AND AUTHORITIES
xxxxxxxxxxx, through undersigned counsel, respectfully moves this Honorable Court, pursuant to Brady v. Maryland, 373 U.S. 83 (1963), United States v. Morgan, 581 F.2d 933 (D.C. Cir. 1979), and Roviaro v. United States, 353 U.S. 53 (1957), to order the government to disclose
1) the description of the individual who allegedly sold the informant drugs in the seventy-two hours prior to October 1, 1997, when the affidavit in support of a search warrant was submitted; and
2) the identity and whereabouts of the confidential informant who was utilized during the investigation of this case and who provided information which resulted in Larry xxxxxxx's becoming one of the targets of the investigation in this case.
In addition, Mr. xxxxxxx seeks an order mandating that the government disclose:
a) Any information regarding the informant suggesting that s/he was under the influence of alcohol, narcotics, or other drug at the time of the observations about which the witness will testify and/or the informant informed, or that the witness'/informant's faculties of observation were impaired in any way. United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980);
b) the length of an extent of the witness' informant status;
c) the amount paid to the informant;
d) nonmonetary assistance also provided to the informant, including, but not limited to, assistance in avoiding or minimizing harm from charges pending against the informant, such status having existed either at the time of the offense and/or any other time through the day at trial;
e) all benefits or promises of benefit or statements that benefit would not be provided without cooperation that were made to the informant in connection with this case, whether or not fulfilled. "Benefit" refers to any monetary compensation, assistance of the prosecutor or the court concerning pending charges against the informant, or any other sort of consideration of value;
f) the nature of assistance provided in the past, including the number of occasions and form(s) of help.
As grounds for this motion, Larry L. xxxxxxx, through counsel, states:
1. Mr. xxxxxxx is charged by indictment with unlawful possession of a firearm and ammunition, in violation of 18 U.S. Code § 922(g)(1).
2. Mr. xxxxxxx was arrested on October 15, 1997, twelve days after
Metropolitan Police Department officers had executed a search warrant on xxxx Sixth
Street, S.E., Apartment x, in Washington, D.C., where Mr. xxxxxxx and his family live.
3. The affidavit for the search warrant in this case, appended hereto as Exhibit A, states that within seventy two hours preceding October 1, 1997, a confidential source had purchased cocaine within 4244 Sixth Street, S.E., Apartment 5, in the District. The source had been provided with Metropolitan Police Department funds with which to make the purchase and, after making it, reported the purchase directly to the officer who provided the affidavit in support of the search warrant. The source advised police officers that he had purchased the drugs from one of the occupants in the building, a black male approximately 5'9", 170 pounds. The affidavit does not describe the person from whom the source allegedly purchased the cocaine. The description of the person who sold the drugs to the informant, as well as the informant's identity, would be exculpatory information to which Mr. xxxxxxx is entitled.
4. Mr. xxxxxxx asserts that access to and the identity of the confidential informant is critical to any alleged connection of Mr. xxxxxxx to the contraband in this case. Moreover, the informant's identity and access to him/her is essential to effective representation of Mr. xxxxxxx, his presentation of a defense, and the discovery of exculpatory information. Brady v. Maryland, 373 U.S. 83 (1963); Washington v. Texas, 388 U.S. 14 (1967).
ARGUMENT
In Roviaro v. United States, 353 U.S. 53 (1957) the Supreme Court acknowledged an accused's entitlement to disclosure of the identity of an informant. In this case, the informant's identity could lead to exculpatory information since there may be a probability that the drugs purchased at 4244 Sixth Street, S.E., may have been purchased from someone other than Mr. xxxxxxx. No drugs were found on the premises when the apartment was searched, nor were drugs found on Mr. xxxxxxx, nor did the cotenant who lived with Mr. xxxxxxx indicate that drugs ever were in the residence. This raises an issue concerning the informant's credibility, and should be tested by defendant.
In United States v. Morgan, 581 F.2d 933 (D.C. Cir. 1979), the Court held that in a situation involving the execution of a search warrant, evidence that another person was selling [drugs] from the house was decidedly relevant." 581 F.2d at 936. In Morgan the D.C. Circuit reversed the conviction based upon the trial court's exclusion of the informant's statements regarding who had sold him the drugs during a "controlled buy." The Circuit held that "the excluded evidence [bore] on a matter that could be determinative of guilt or innocence." Id. Likewise, in the instant case, the description of the person who sold drugs to the informant during the 72-hour period preceding October 1, 1998, as well as the informant's identity, could be determinative of Mr.xxxxxxx's innocence since he could establish that the person who sold him the drugs during the controlled buy described in the affidavit for the search warrant was someone other than Mr. xxxxxxx. Thus, disclosure of the informant's identity and whereabouts is essential to discovery of exculpatory information for Mr. xxxxxxx. Brady v. Maryland, 373 U.S. 83 (1963). It is also critical to Mr. xxxxxxx's constitutional right to present a defense. Washington v. Texas, 388 U.S. 14 (1967).
In Roviaro the Supreme Court acknowledged the need for defense counsel to interview the witness. 353 U.S. at 64 ("[t]he desirability of, ... at least interviewing [the confidential informant] in preparation for trial, [is] a matter for the accused rather than the government to decide"). Likewise, in other contexts the Supreme Court has held that an interest in confidentiality is overcome when the accused's right of confrontation is at stake. See Davis v. Alaska, 415 U.S. 308 (1974) (accused is entitled to cross-examine prosecution witness regarding his juvenile probationary status notwithstanding the interest in confidentiality of juvenile adjudications).
The information sought, in addition to the informant's identity, relates directly to the credibility of the informant and his/her bias and is therefore relevant to impeaching the informant and providing the defense with exculpatory information. Mr. Leake has a constitutional right to explore the informant's bias and credibility on cross-examination. Giglio v. United States, 405 U.S. 150 (1972); Giles v. Maryland, 386 U.S. 66 (1967); Napue v. Illinois, 360 U.S. 264 (1959) (denial of due process occurred where prosecutor failed to correct prosecution witness who testified perjuriously that he had received no promise of consideration in exchange for his testimony). See also Villaromen v. United States, 184 F.2d 261, 262 (D.C. Cir 1950) ("Bias of a witness is always relevant"). Moreover, the defense's entitlement to the requested information is supported by the case law. See e.g. Giglio v. United States, supra (entitlement to promises the informant has received in consideration for his/her testimony); Giordano v. United States, 394 U.S. 310 (1969) (informant's prior testimony while acting as an informant); United States v. Fowler, 465 F.2d 664 (D.C. Cir. 1972) (promises received for consideration); United States v. Lindstrom, 698 F.2d 1154 (11th Cir. 1983) (psychiatric history); Williams v. Griswold, 743 F.2d 1533 (11th Cir. 1984) (criminal history); United States v. Auten, 632 F.2d 478 (5th Cir. 1980) (same).
WHEREFORE for the foregoing reasons, and any others which may appear in supplemental pleadings which Mr. xxxxxxx reserves the right to file, and at a full hearing on this matter, Larry L. xxxxxxx, through counsel, respectfully requests that this Motion be granted and that this Court order the government to disclose the requested information.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
Valencia Rainey
Assistant Federal Public Defender
625 Indiana Avenue, N.W.
Washington, D.C. 20004
(202) 208-7500
CERTIFICATE OF SERVICE
This is to certify that on this th day of January 1998, a copy of the foregoing Motion For Disclosure Of Confidential Informant and Exculpatory Information and the Incorporated Memorandum of Points and Authorities In Support Thereof has been served upon the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 for Assistant United States Attorney Gregory Gruber, by leaving a copy in the box designated for the Office of the United States Attorney in the Clerk's Office of the United States District Court for the District of Columbia.
Valencia Rainey
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. : Criminal No.xx-0453 (JR)
:
Larry L. xxxxxxx, :
:
Defendant. :
:
O R D E R
Upon consideration of Defendant Larry L. xxxxxxx's Motion For Disclosure Of Confidential Informant and Exculpatory Information and the Incorporated Memorandum of Points and Authorities In Support Thereof, it is this ________ day of January 1998, hereby
ORDERED, that Defendant xxxxxxx's Motion is granted.
______________________________
ROYCE C. LAMBERTH
UNITED STATES DISTRICT JUDGE
Copies to:
Valencia Rainey
Assistant Federal Public Defender
625 Indiana Avenue, N.W. Suite 550
Washington, D.C. 20004
(202)208-7500
Gregory Gruber
Assistant United States Attorney
555 4th Street, N.W.
Washington, D.C. 20001
(202)514-7298