United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE
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.
April 17, 2019, Gomez was charged with possession with intent
to distribute more than 50 grams of
methamphetamine. (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.)
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.
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).
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).
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)
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.)
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.)
The confidential informant is more like a
“tipster” than a participant in 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). ...