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Gomez v. United States

United States District Court, D. New Mexico

November 5, 2019

RAMON GOMEZ, Defendant/Movant,
v.
UNITED STATES OF AMERICA, Plaintiff/Respondent.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE

         Defendant Ramon Gomez was charged with possession with intent to distribute methamphetamine after a confidential informant provided law enforcement with the necessary information in an affidavit for a warrant to search his home. Gomez now moves the Court to disclose the identity of the confidential informant so that he can defend against the warrant. (Doc. 20.) Given that the informant was not engaged in the specific criminal activity charged and only acted as a “tipster, ” the Court will deny the motion to disclose.

         I. Background

         On April 17, 2019, Gomez was charged with possession with intent to distribute more than 50 grams of methamphetamine.[1] (Id. at 1.) Having received a search warrant through state court, the police found methamphetamine “concealed in a fake bleach bottle in the laundry area of the home.” (Id. at 2.) The warrant affidavit alleged that “one or more confidential informants arranged to meet with Mr. Gomez at his residence for the purpose of purchasing methamphetamine.” (Id.) But the affidavit does not contend that the informant actually met with Gomez; it does not specify how many people were in the home; nor does it describe the amount of drugs present. (Id.) The informant's information was based on the ability to purchase drugs from Gomez in two controlled purchases-though Gomez argues that these past transactions never occurred. (Id. at 2-3.) Gomez suggests that without the identity of the informant, he cannot adequately defend against the warrant. (Id. at 3.)

         The government states that “[b]etween April 8, 2019 and April 17, 2019 . . . [n]arcotics agents utilized a [confidential informant] to engage in two controlled purchases of methamphetamine from the Defendant . . . .” (Doc. 23 at 2.) The informant utilized government funds to purchase a personal amount of methamphetamine. (Id. at 3.) The controlled purchases were not recorded, but the agents participated in the transaction and watched the informant enter and exit the premises. (Id.) As a result, the agents received a warrant to search the home, which resulted in Gomez's arrest. (Id.)

         II. Legal Standards

         The government has the “privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” Roviaro v. United States, 353 U.S. 53, 59 (1957) (citations omitted). Yet the court may require disclosure where the “informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused . . . .” Id. at 60-61 (footnote omitted).

         The Tenth Circuit employs three categories to organize informant cases. First, disclosure is not required when the informant “is a mere tipster . . . .” United States v. Moralez, 908 F.2d 565, 568 (10th Cir. 1990) (citation omitted). Next, there are cases “where there is a slight possibility a defendant might benefit from disclosure, but the government has demonstrated a compelling need to protect its informant.” Id. (citation omitted). Finally, when the informant plays “a crucial role in the alleged criminal transaction, and disclosure and production of the informant are required to ensure a fair trial, ” then the court should compel disclosure. Id. (citation omitted).

         Determining whether to reveal the identity of the informant “involves balancing 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.” United States v. Sinclair, 109 F.3d 1527, 1538 (10th Cir. 1997) (citation omitted). Specifically, 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. (citation omitted). When an informant has “nothing relevant to say regarding Defendant's guilt of the charged offense, there [is] no need to question him.” United States v. Long, 774 F.3d 653, 663 (10th Cir. 2014). Further, “disclosure is not required if the defendant does not make the ‘substantial preliminary showing' required by Franks.Id. at 661 (quoting Franks v. Delaware, 438 U.S. 154, 155 (1978)). This requires that Defendant show beyond mere speculation that “a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit . . . .” United States v. Williams, 576 F.3d 1149, 1161 (10th Cir. 2009) (quotation omitted).

         III. Analysis

         Gomez argues that “[i]n order to challenge the validity of the search warrant, and to adequately prepare for trial, it is critical for Mr. Gomez to challenge the government's allegations against him.” (Doc. 20 at 3.) Here, Gomez states that his “right to prepare his defense outweighs the government's interest in keeping the informant's identity confidential.” (Id. at 6.) Given the severity of the crime-with a minimum mandatory sentence of 10 years-Gomez should have the “right to challenge the allegations against him, but [he] cannot do so if the identity of the informant is not disclosed.” (Id. at 7.) Gomez further argues that “to prove that the transactions did not happen as asserted, the defense needs to be able to find out the dates, times[, ] and specifics of the transactions, as well as to determine who else was present during the alleged transactions.” (Id. at 10.)

         Yet the Government posits that disclosing the identity of the informant “could seriously jeopardize the safety of the [informant], given that Defendant has prior convictions for felony and misdemeanor domestic violence crimes, and possessed a white ballistic vest with a trauma plate and a black handgun that was later determined to be a pellet gun . . . .” (Doc. 23 at 4.) Moreover, the agents are still using the informant in a separate investigation. (Id.) And finally, the controlled purchases “merely served as part of the basis for securing a search warrant for Defendant's residence.” (Id. at 9.)

         a. The confidential informant is more like a “tipster” than a participant in the crime.

         The Court must first determine which of the three case categories applies to Gomez. If the informant plays a substantial role in the criminal activity, then the defendant can compel the Court to reveal the individual's identity. For instance, in Rovario the informant was “the sole participant, other than the accused, in the transaction charged.” 353 U.S. at 64. This confidential individual was “in a position to amplify or contradict the testimony of government witnesses.” Id. In United States v. Martinez, the court found that because an “informer introduced the undercover agent to the accused's codefendant and was present when the sale was consummated, then the testimony of the informer is relevant . . . .” 487 F.2d 973, 976 (10th Cir. 1973) (citations omitted). And in United States v. Moralez, the informant likely “witnessed at least the preparations of the crime.” 908 F.2d 565, 568 (10th Cir. 1990). ...


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