IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ROME DIVISION

UNITED STATES OF AMERICA )

)

v. ) 4:94-CR-24-04 (HLM)

)

xxxxxxxxxx. )

_____________________________)

MOTION FOR DISCLOSURE OF AND ACCESS TO THE

CONFIDENTIAL INFORMANT AND BRIEF IN SUPPORT

COMES NOW Defendant, xxxxxxx, by and through undersigned counsel, and files this motion seeking disclosure by the government of the name and addresses and other identifying information concerning the confidential informants in this case. Furthermore, defendant requests that he be given access to these informants once their identities are made known.

ARGUMENT

The disclosure of the identity and location of informants is governed by Rovario v. United States, 353 U.S. 53 (1957). In Rovario, the Supreme Court affirmed the principle that the government has a privilege to withhold from disclosure the identity of persons who furnished information of violations of the law to officers charged with enforcement of that law. Id. at 59. The purpose of this privilege is "the furtherance and protection of the public interest in effective law enforcement." Id. Rovario also stands for the proposition that this governmental privilege is limited, and that courts must engage in a balancing test to weigh the public's interest in protecting the flow of information against a defendant's right to prepare a defense for trial.

There are three factors which come into play for a court when engaging in the Rovario balancing test. A court must examine the extent of the informant's participation in the criminal activity, the directness of the relationship between the defendant's asserted defense and the probable testimony of the informant, and the government's interest in non-disclosure. United States v. Gutierrez, 931 F.2d 1482, 1491 (11th Cir. 1991); United States v. Tenorio-Angel, 756 F.2d 1505, 1509 (11th Cir. 1985).

A defendant can tip the balance in this weighing process in his favor by showing that the informant played an active role in the criminal activity and that the informant's testimony would sufficiently aid in establishing an asserted defense. United States v. McDonald, 935 F.2d 1212, 1217 (11th Cir. 1991). It is true that the defense must show that the informant's testimony would sufficiently aid in establishing an asserted defense. United States v. Gutierrez, supra at 1491. However, if the informants are actual participants in the illegal activity, it is presumed that the defendant has met his burden of showing the need to have access to them and there is a duty by the government to reveal their identity. United States v. Tenorio-Angel, supra; United States v. Gutierrez, supra.

When an informant actually participated in the criminal activity the government must "set forth with particularity its reasons for non-disclosure of the informant's whereabouts." United States v. Aguirre-Aguirre, 716 F.2d 293 at 300 (5th Cir. 1983) cited with approval in United States v. Tenorio-Angel, supra, at 1510-11. It is well-accepted that the more active the informant's participation in the criminal activity the greater the need by a defendant for identification of that person. United States v. Gonzalez, 606 F.2d 70 (5th Cir. 1979); Suarez v. United States, 582 F2d 1007 (5th Cir. 1978).

The defendant is entitled to disclosure of and access to the confidential informants in this case. Because the informants were actually involved in the criminal activity, and have first-hand knowledge of this defendant's alleged involvement, the defendant's need for access to them is great. A defendant need not reveal his defense to the government in order to make his request for access to an informant. If necessary, the defendant is willing to follow the accepted and customary method of making an in camera showing to the Court as to why the defendant has a need for access to the informant in this case.

Based on the foregoing, the defendant respectfully requests that the Court grant his motion for access to and disclosure of the locations of the informants.

Dated: This ___ day of October, 1994.

Respectfully submitted,

____________________________________

GREGORY S. SMITH

ATTORNEY FOR:

STATE BAR NO. 658375

Federal Defender Program, Inc.

Suite 3512, 101 Marietta Tower

Atlanta, Georgia 30303

(404) 688-7530

CERTIFICATE OF SERVICE

This is to certify that I have this day served a copy of the foregoing Motion for Disclosure of and Access to the Confidential Informant and Brief in Support upon:

David Nutter, Esq.

Assistant United States Attorney

1800 Richard B. Russell Building

75 Spring Street, S. W.

Atlanta, Georgia 30335

by hand delivering a copy of the same.

Dated: This _____ day of October, 1994.

____________________________________

GREGORY S. SMITH

ATTORNEY FOR: xxxxxzx. STATE BAR NUMBER: 658375

C:\wwwfpd\inform3.wpd