IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES )
)
v. ) Criminal No. xx-171 (SS)
)
xxxxxxxxxxxxxxxx, )
)
Defendant. )
_________________________ )
DEFENDANT'S MOTION
FOR DISCLOSURE OF CONFIDENTIAL INFORMANTS
Defendant, by and through undersigned counsel, in accordance with the decisions in Roviaro v. United States, 353 U.S. 53 (1957), Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Eniola, 893 F.2d 383, 388 (D.C. Cir. 1990), moves this honorable Court for the entry of an Order directing the government to furnish counsel for the accused with the name, address, and present location of any informant, confidential informant, informer, confidential source, special employee, source of information, cooperating individual, or witness (hereinafter referred to as "informant"), paid or unpaid, of any governmental agency or unit, state or federal, who supplying or who had supplied information or performed any role whatsoever which formed the background for, or resulted in the search warrant in this case or the indictment against the accused.
Specifically, the accused requests that the Court direct the attorney for the government to furnish counsel for the accused with the following information concerning any such potential government witness:
1. Whether any informant was a user of any controlled substances or was a distributer of controlled substances, and, if so, the complete nature and extent of his drug use and trafficking.
2. Whether any informant has, since becoming an informant, continued to use or distribute any controlled substances, and, if so, the dates, times, places and recipients of such distributions.
3. Whether any informant was suspected, apprehended, or convicted of any crime(s) at any time during which he/she agreed to gather information on behalf of the United States Government.
4. What crimes or other breaches of law (including jurisdiction and case number) have such informant(s) committed or were suspected of having committed at any time during which he/she agreed to gather information or testify on behalf of the United States Government.
5. Whether any potential or actual criminal charges against any informant were abandoned, altered, or otherwise disposed of upon agreement with any such informant to gather information or testify on behalf of the United States Government.
6. What financial arrangements existed or exist between any informant and the agencies of the United States, the District of Columbia, or any other sister state, and the amount of money that has been paid to the informant.
7. The names, addresses and criminal records (including juvenile records) of any informant to be called as a witness for the United States Government.
8. The substance of any plea bargain(s) entered into by the informant and any agency of the United States, the District of Columbia, or any other state, and the authority for any such plea bargain(s).
9. The substance of any agreements made by the United States, the District of Columbia, or any other state with any informant not to charge crimes, and the authority for any such agreements.
10. Information tending to show bias and/or prejudice on the part of any informant .
11. Information tending to show that any informant has made contradictory or inconsistent statements relative to this case, any related case, or with regard to Clinton Wilson.
12. Information tending to show that any informant suffered from any material defect in perception, memory, veracity or articulation during any time period relevant to the witness' testimony in this case.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
__________________________
L. Barrett Boss
Assistant Federal Public Defender 625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES )
)
v. ) Criminal No. xx-171 (SS)
)
xxxxxxxxx xxxxxxxxxxxx, )
)
Defendant. )
_________________________ )
MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT'S MOTION FOR DISCLOSURE
OF CONFIDENTIAL INFORMANTS
In order to properly defend this case, it is imperative that the accused be furnished with the names, addresses and present locations of each and every informant. Being a participant in, or a witness to, any charged or uncharged misconduct qualifies the informant as a material witness. The Supreme Court in Roviaro v. United States, 353 U.S. 53 (1957), in balancing an accused's right to fundamental fairness guaranteed by the Constitution against the government's interest in withholding from disclosure the identity of an informant, recognized what has become known as the "informer's privilege":
What is usually referred to as the informer's privilege is in reality 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 the law.
* * *
The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation. Id. at 60 (citations omitted). Although the Court recognized such a privilege, it expressly pointed out limitations on its applicability. One such limitation "arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity, or the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Id. at 60-61; accord, United States v. Eniola, 893 F.2d 383, 388 (D.C. Cir. 1990); McLawhorn v. State of North Carolina, 484 F.2d 1, 4-5 (4th Cir. 1973).
In determining whether disclosure of an informant's identity is appropriate, a distinction must be made as to whether the informant was an active participant in the crime charged or merely a tipster who supplied a lead to law enforcement officers. Eniola, 893 F.2d at 388; McLawhorn, 484 F.2d at 5. If it is determined that the informant was an "actual participant," that is, "he helps to set up the criminal occurrence," then disclosure of the identity of the informant is required. Id; see Roviaro, 353 U.S. at 64. If, on the other hand, the court determines that the informant's role was that of a mere tipster, one who supplies a lead enabling law enforcement officers to further their investigation, then disclosure is not required.
The discovery does not establish the exact nature of the informant's role in the alleged criminal conduct; however, it is clear that this case stems entirely from the information allegedly provided by the confidential informant. If not for that information, there would have been no basis upon which to seek a search warrant, and thus, there would have been no discovery of the guns and ammunition which serves as the basis for this case. This individual was not a mere tipster, but his/her alleged observation and reliability was the entire basis for the search warrant. In this case, the information is not only necessary for purposes of preparing for trial, but perhaps more importantly for examining the underlying basis for obtaining the search warrant. While the affiant represents that the informant has been 100% reliable and accurate, never having provided any "false or misleading" information, the defense has a good faith basis for believing that this representation is, at the very least, an exaggeration. Such an exaggeration could provide a basis for suppressing the fruits of the search. See Franks v. Delaware, 438 U.S. 154 (1978).(1)
In McLawhorn, the court pointed out that the rule regarding the degree of the
informant's participation (tipster vs. actual participant) in part "operates to
protect the accused in the proper preparation of his defense." 484 F.2d at 7. The
fact that the government may not intend to call an informant as a witness does not
automatically warrant non-disclosure. In Roviaro, the Supreme Court addressed the
problem an accused faces under such circumstances when it started:
Petitioner's opportunity to cross-examine Police Officer Bryson and Federal Narcotics Agent Curham was hardly a substitute for an opportunity to examine the man who had been nearest to him and took part in the transaction. Doe had helped to set up the criminal occurrence and had played a prominent part in it. His testimony might have disclosed entrapment.
* * *
The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.Roviaro, 353 U.S. at 64 (emphasis added). Thus, the Supreme Court recognized the importance of disclosing the name and whereabouts of an informant so that the accused would have the opportunity of at least interviewing the informant in order to adequately prepare for trial. For, it is axiomatic that the witnesses do not belong to either the prosecution or the defense and should be available to either side.
Where the informant is a participant and plays a critical role in the obtaining of the
search warrant, such as here, depriving an accused of the right to interview or call such
a witness constitutes a denial of fundamental fairness, and violates his Sixth Amendment
rights to confrontation and to effective assistance of counsel. The Supreme Court has held
that there can be no fixed rule as to when disclosure is essential. Therefore, the
question of disclosure becomes a matter of balancing the interest of the public in the
free flow of information against the accused's right to effectively and adequately prepare
his defense. Roviaro, 353 U.S. at 62. This is not a case in which there is any
allegation of prior acts of violence against a witness or obstruction by the defendant so
there is no basis for arguing that disclosure of the identity of these individuals would
jeopardize their safety.
WHEREFORE, for the foregoing and such other reasons as may appear to the Court upon a hearing on this motion, Mr. Wilson asks that this request be granted.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
__________________________
L. Barrett Boss
Assistant Federal Public Defender 625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES )
)
v. ) Criminal No. zxx-CR-171
)
xxxxxxxxx xxxxxxxxxxxx, )
)
Defendant. )
_________________________ )
O R D E R
Upon consideration of Defendant xxxxxxx Motion For Disclosure of Confidential Informants, the government's Response thereto, and the entire record in this matter, it is this ________ day of _____________, 1998, hereby
ORDERED that defendant xxxxx Motion is granted; and it is further
ORDERED that the government immediately disclose the confidential informant information requested by the defense.
COLLEEN KOLLAR-KOTELLY
U.S. DISTRICT JUDGE
Copies to:
L. Barrett Boss Darrell Valdez
625 Indiana Avenue, N.W. Assistant U.S. Attorney
Suite 550 555 4th Street, N.W.
Washington, D.C. 20004 Washington, D.C. 20001
CERTIFICATE OF SERVICE
I hereby certify that on the st day of June 1998, the foregoing Motion and Memorandum were served by hand (drop box) upon:
Darrell Valdez
Office of the United States Attorney
for the District of Columbia
555 - 4th Street, N.W.
Washington, D.C. 20001
L. Barrett Boss
Assistant Federal Public Defender
1. At the very least, the government should provide the requested information to the Court for in camera review to determine whether there is any basis to question the reliability or veracity of the informant.