United States District Court, W.D. Washington, Seattle
HONORABLE JOHN C. COUGHENOUR JUDGE.
matter comes before the Court on Defendant's motion to
compel discovery (Dkt. No. 29). Having thoroughly considered
the parties' briefing, ex parte filings, and the
relevant record, the Court hereby DENIES the motion for the
reasons explained herein.
is charged with possession of cocaine and heroin with intent
to distribute, possession of a firearm in furtherance of a
drug trafficking crime, and felon in possession of a firearm.
(Dkt. No. 13.) Defendant asked the Court to compel the
Government to produce a photograph of the confidential
informant (“CI”) used in the investigation
leading to his arrest. (Dkt. No. 29 at 1.) Defendant seeks
this information because he believes the CI supplied the guns
with which he is charged. (Id.) Defendant argues
that the information will be helpful in determining whether
he can present an entrapment defense. (Id. at 3-4.)
The Government opposes disclosure. (Dkt. No. 39.)
Court's instruction, Defendant supplemented his motion
with an ex parte sealed proffer addressing the
defense's investigation into the identity of the
informant and facts supporting a potential entrapment defense
(Dkt. No. 43). The Government also filed an ex parte
sealed supplement regarding the informant (Dkt. No. 40).
Finding Defendant had met a “minimal threshold
showing” of relevance, the Court held an in
camera hearing with the Government to discuss disclosure
(Dkt. No. 67) and subsequently ordered Defendant to submit
questions it would like to pose to the CI for the Court's
consideration (Dkt. Nos. 57, 64). See United States v.
Spires, 3 F.3d 1234, 1239 (9th Cir. 1993). Defendant
objected to an in camera interview of the CI,
arguing this approach would not sufficiently resolve its
motion to compel. (Dkt. No. 65 at 1.) The Court relies on
information gleaned from these efforts in deciding the
Rule of Criminal Procedure 16(e) provides criminal defendants
a “broad right to discovery” of documents that
are “material to preparing the defense.”
United States v. Stever, 603 F.3d 747, 752 (9th Cir.
2010). Materiality is met when a defendant puts forward
specific facts showing the information is helpful in
preparing a defense. United States v. Santiago, 46
F.3d 885, 893 (9th Cir. 1995). However, the defendant
requests information regarding a CI, the right to disclosure
is restricted by the Government's privilege to withhold
the CI's identity. Rovario v. United States, 353
U.S. 52, 59 (1957). This privilege gives way only where
disclosure of the CI's identity or communication is
“relevant and helpful” to the defense.
Id. at 60-61.
determine whether to require disclosure of a CI's
identity under this standard, courts must “balanc[e]
the public interest in protecting the flow of information
against the individual's right to prepare his
defense.” Id. at 62. The following factors are
relevant: (1) the crime charged; (2) the possible defenses;
(3) the possible significance of the informer's
testimony; and (4) other relevant factors, including an
informant's safety and the Government's need for
continued use of the informant and use of informants
generally. Id. at 62; United States v. Sai Keung
Wong, 886 F.2d 252, 256 (9th Cir. 1989). The defendant
bears the burden of establishing a need for the disclosure.
Wong, 886 F.2d at 256.
these factors, the Court finds that the informant's
privilege outweighs any need for disclosure. Defendant argues
that disclosure of the informant's identity and testimony
are relevant and helpful to his proposed entrapment defense
to his gun charges. (Dkt. No. 29 at 6.) Defendant has not
indicated that the information would be helpful to his
defense against the additional charge for possession of
cocaine and heroin with intent to distribute. Even assuming
Defendant were correct about the CI's identity, the
CI's testimony would not advance the proposed defense.
The Court has learned that the CI no longer resides in the
U.S. and would be unavailable as a witness. (See
Dkt. No. 67 at 7.) The CI has also denied providing firearms
to Defendant. The Court concludes that neither
Defendant's proposed questions for an in camera
interview nor disclosure of the CI's identity would help
Defendant establish entrapment.
the Government's continued use of the CI is not a concern
here, given that the CI no longer resides in the area, the
Court gives weight to the safety concerns that accompany the
requested disclosure. The CI expressed such concerns
regarding Defendant at the time of the investigation and has
since expressed concerns about the safety of his family, who
remain in the Seattle area and could become victims of
retaliation if his identity is revealed. The Court takes
these concerns seriously, as well as the Government's
broader interest in encouraging citizens to provide
information regarding crimes. See Rovario, 353 U.S.
at 59-61. Balancing these considerations with the minimal
assistance the information would provide Defendant, the Court
finds disclosure inappropriate. See Spires, 3 F.3d
at 1238 (courts must balance the extent to which disclosure
would be relevant and helpful with the government's
interest in protecting the CI's identity).
foregoing reasons, Defendant's motion to compel discovery
(Dkt. No. 29) is ...