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United States v. Brown

United States District Court, D. New Mexico

January 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JULIAN BROWN, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR DISCLOSURE REGARDING CONFIDENTIAL INFORMANT

         THIS MATTER comes before the Court on Defendant Julian Brown's Motion for Disclosure Regarding Confidential Informant (Doc. 20) filed on October 21, 2016. Having considered the parties' written and oral arguments, the testimony and evidence presented at the hearing on January 6, 2017, and the applicable law, the Court finds that Defendant's Motion is not well-taken and, therefore, is DENIED.

         BACKGROUND

         Mr. Brown is charged by indictment with distributing heroin and selling a short barreled shotgun to an undercover Bureau of Alcohol, Tobacco, Firearms and Explosives (“BATF”) agent on July 11, 2016 in Albuquerque, New Mexico.[1] Defendant states he was introduced to the undercover agent by a confidential informant (“CI”) identified in discovery as “ATF Confidential Informant (CI) 11438.” The CI allegedly recruited Mr. Brown to engage in illegal transactions by selling him a carton of cigarettes at a greatly reduced price. The CI was present at the transactions alleged in the Indictment. As such, Defendant contends the CI is a percipient witness to and a participant in the events set out in the Indictment. At the time of the arrest, Mr. Brown was working at a stucco company and supporting his fiancée and infant daughter.

         Defendant filed a Motion for Disclosure Regarding Confidential Informant (Doc. 20) on October 21, 2016. The United States filed a Response (Doc. 21) on November 7, 2016. Defendant filed a Reply (Doc. 23) on November 28, 2016.

         DISCUSSION

         As an initial matter, the Court agrees with the argument advanced at the hearing by Assistant U.S. Attorney Norman Cairns that if Mr. Brown is arguing or asserting an entrapment defense, whether Mr. Brown was entrapped is for the jury to decide and the jury would be so instructed. Moreover, Mr. Cairns represented that the United States would produce the CI to testify at trial. In view of the representations made by Mr. Cairns, the focus then of Mr. Brown's motion can only concern the question of whether the Court should order disclosure of the CI at this time for purposes of determining whether Defendant should file a motion to dismiss the conduct on allegedly outrageous conduct by government agents.

         Mr. Brown argues disclosure of the CI's identity, of his statements to law enforcement, of his background, and production of the CI for a statement are relevant and helpful to Mr. Brown's defense. Mr. Brown seeks the disclosure under Roviaro v. United States, 353 U.S. 53, 61-62 (1957). Mr. Brown states he may rely on the defense of outrageous misconduct. Testimony of the CI is essential to this defense because the CI was a percipient witness to and a participant in the alleged negotiations which resulted in Defendant's alleged participation in this transaction. The CI may be able to provide evidence of inducements or threats which caused the defendant's participation. The CI may also be able to provide testimony relevant to reluctance to participate on the part of the defendant. The defendant's right to prepare and present his defense outweighs the public interest in protecting the flow of information to the government in this case. See Id. at 62. At the hearing, Defendant's counsel explained this is not a case where Defendant was targeted because he was involved in illegal activity, but rather is a situation where the CI basically induced Mr. Brown to engage in the activities set out in the Indictment.

         Further, Defendant maintains that calling the CI as a witness, or at least interviewing him in preparation for trial, is a matter for the accused rather than the government to decide. Id. at 64. Defendant states he has been unable to locate or identify the CI, and requests this Court to order the government to disclose the name and address of the informant and to produce him for a statement at least fourteen days prior to trial. Defendant states the Court must balance the government's privilege against disclosing informants with Mr. Brown's constitutional right to present a defense, and the balancing of interests here weighs most heavily for Mr. Brown. Defendant states there is no disincentive for the flow of information because the CI here is not a mere tipster but is rather a paid employee of BATF.

         Mr. Brown also requests the Court order the government to disclose any and all evidence relating to the bias or credibility of the CI. He claims such disclosure is constitutionally required. See Giglio v. U.S., 405 U.S. 150 (1972). Defendant claims disclosure of impeachment evidence is required under Brady v. Maryland, 373 U.S. 83 (1963); and U.S. v. Bagley, 473 U.S. 667 (1985).

         In the Response, the United States contends the motion should be denied because Defendant fails to explain how the identity of the CI would be essential to his defense. The government asks the Court to hold an in camera hearing to determine the additional requisite facts needed to evaluate Defendant's request (if the Court cannot decide the motion presently).[2] The United States points out that in camera hearings are accepted procedures in the Tenth Circuit when evaluating whether to disclose an informant. See Gaines v. Hess, 662 F.2d 1364, 1369 (10th Cir. 1981).

         The government's principal argument is that Mr. Brown has not shown the identity of the CI would materially aid his defense, as he is required to do. See Rovario, 353 U.S. at 60-61 (Only “[w]here the disclosure of an informer's identity, or of 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” may a trial court require that the identity of a CI be disclosed.). The government also correctly notes there is no fixed rule requiring disclosure of the CI's identity. Rather, it is a balancing inquiry and courts must consider the particular circumstances of the case. See United States v. Sinclair, 109 F.3d 1527, 1538 (10th Cir. 1997). The government emphasizes that “[w]here 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.” Id. Importantly, a defendant seeking to force the disclosure of a CI's identity bears the burden of demonstrating that the CI's “testimony is relevant or essential to the fair determination of defendant's case.” United States v. Gordon, 173 F.3d 761, 767 (10th Cir. 1999). Here, the government argues, Defendant states only that he “may” rely on the defense of outrageous misconduct or entrapment, that the CI “may” provide evidence of inducements or threats, and “maybe” able to give relevant testimony regarding Mr. Brown's reluctance to participate in the illegal exchange. The government properly notes these vague conjectures are not alone sufficient to meet Defendant's considerable burden under Rovario. Defendant must show the CI has information that: (1) somehow materially aids Defendant; (2) is not in the possession of Defendant or the undercover agent or any other federal agent involved here; and (3) is so critical that it outweighs the “strong public interest in furthering effective law enforcement.” United States v. Brantley, 986 F.2d 379, 382 (10th Cir. 1993).

         Lastly, although the government's Response initially stated Defendant's Giglio discovery request should be denied because the government does not plan on calling the CI as a witness should this matter go to trial[3], counsel for the United States represented at the hearing that it would be producing the CI for purposes of the trial. Government counsel stated the United States plans to discover any exculpatory and/or impeachment evidence in advance of trial, and turn it over to defense counsel in the event such evidence is material. However, the United States maintained its position that Defendant has no basis upon which to cross-examine the CI in advance of trial.

         In replying, Defendant claims BATF agents paid cash to CIs, like the CI in this case, “to troll unsupervised for individuals who might be induced to engage in legal or illegal firearms and narcotics transactions in exchange for more cash.” Defendant states that at the time, he was supporting his fiancée and their infant. Mr. Brown's criminal background consists only of juvenile offenses and misdemeanors. Defendant claims he told the undercover BATF agent and/or the CI that he did not have drugs but he knew where to find them. Agents encouraged Mr. Brown to go out and find contraband, to commit a crime by obtaining and selling the contraband to them, and offered to pay him cash if he would do so. The CI was not a mere tipster and was a paid government participant who groomed Mr. Brown to commit the crimes alleged in the Indictment.

         Mr. Brown argues disclosure of the CI is warranted here because, first, it is his decision whether to call the CI as a witness. See Roviaro, 353 U.S. at 64. Defendant maintains that the fact that the government paid a CI to induce people to commit crimes may give rise to a motion to dismiss, disclosure is warranted. Moreover, that paid CIs ‚Äútargeted ...


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