United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION AND ORDER
THOMAS B. RUSSELL, Senior District Judge.
This matter comes before the Court upon several pretrial motions filed by Defendant Gary Owen Jackson that now stand ready for adjudication. The Court will address each of Jackson's motions in turn.
I. Motion for Production of Notice of Government's Intention to Introduce 404(b) Evidence
Jackson first seeks an order compelling the Government to give notice of its intention to use evidence of his other crimes, wrongs, or bad acts at trial, pursuant to Federal Rule of Evidence 404(b). He requests that the Government immediately disclose this information. (Docket No. 31.)
Federal Rule of Evidence 404(b) requires that, on request by a defendant in a criminal case, the prosecutor must provide reasonable notice of the general nature of evidence of crimes, wrongs, or other acts that the prosecutor intends to offer at trial. This notice requirement "is intended to reduce surprise and promote early resolution on the issue of admissibility." Fed.R.Evid. 404(b) (advisory committee note) (1991 amend.) The Government acknowledges its obligations and states that it will comply with them. (Docket No. 43.) The Court finds that a fourteen-day notice period will afford Jackson adequate opportunity to utilize such evidence. As such, the Court will grant Jackson's Motion for Production and will order that the Government shall provide notice of Rule 404(b) evidence no later than fourteen days prior to trial.
II. Motion for Disclosure of the Use of Out of Court Witness Identification
Jackson next asks the Court to require the Government to disclose whether he was the subject of any witness identification procedures. (Docket No. 32.) Specifically, he queries whether the Government utilized impermissibly suggestive procedures that may have led to mistaken identification. The Government responds that no impermissibly suggestive identification procedures were utilized. (Docket No. 44.) Accordingly, the Court will deny Jackson's motion as moot.
III. Motion to Reveal Identities of Confidential Informants
Jackson further moves the Court to order the Government to disclose the identity of any confidential informant who may testify at trail. (Docket No. 33.) He relies upon Roviaro v. United States, 353 U.S. 53 (1977), wherein the Supreme Court discussed the scope of the Government's privilege to withhold the identities of informants. The Roviaro defendant repeatedly demanded disclosure of the informant's identity, but the Government neither issued such a disclosure nor called the informant as a trial witness. Id. at 56, 65. As such, the defendant lacked an opportunity to cross-examine the informant. Under these circumstances, the Supreme Court held, the district court erred in permitting the Government to withhold the informant's identity.
Roviaro acknowledged the Government's privilege to withhold the identity of a confidential informant but noted the privilege's limits. "Where 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, the privilege must give way." Id. at 61 (citations omitted). The Roviaro rule, however, does not confer an absolute right to disclosure. The Supreme Court emphasized the factspecific nature of a district court's analysis:
We believe no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.
Id. at 62.
Significantly, Roviaro concerned an informant who never testified. In Jackson's case, however, the Government avers that it plans to call all participant-informants as witnesses at trial. ( See Docket No. 45.) This crucial difference distinguishes the instant case from Roviaro and compels a different outcome. The Sixth Circuit and its lower courts have held that the Government need not issue a pretrial disclosure of an informant who will testify at trial. See, e.g., United States v. Perkins, 994 F.2d 1184, 1190-91; United States v. Brice, 2009 WL 2043554, at *1 (W.D. Ky. July 9, 2009). "[W]here the informant testifies, the government need not have disclosed his identity prior to trial." Id. at 1190-91 (discussing United States v. Pennick, 500 F.2d 184, 186-87 (10th Cir. 1974)); see also United States v. Perkins, 994 F.2d 1184, 1190 (6th Cir. 1993) ("[A] defendant is not entitled to a list of the names and addresses of the government's witnesses.") (citing Fed. R. Crim. P. 16). Moreover, "[m]ere speculation about the possible usefulness of an informant furnishes a court with nothing to balance against maintenance of the privilege." United States v. Bryant, 951 F.2d 350, 1991 WL 256555, at *5 (6th Cir. 1991). Jackson merely wishes to determine whether the informants at issue could prove helpful to his case but has set forth no evidence that they could support his defense.
In light of these principles, the Court concludes that the Government need not disclose the informant's identity prior to trial. Therefore, ...