United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE.
matter is pending for consideration of the defendant39;s
motion to compel the United States to disclose the identity
of a confidential informant and to provide information and
materials regarding controlled drug purchases. [Record No.
36] For the following reasons, the motion will be denied in
part and granted in part.
August 2016, Lexington Police Department narcotics detectives
received a tip from a qualified confidential informant
(“CI”) who advised that Defendant Arian Brown was
selling large amounts of heroin. [Record No. 23-4, 3');">p. 3]
Shortly thereafter, officers arranged for the CI to perform
two controlled purchases of heroin from Brown. Pursuant to a
valid search warrant, on August 25, 2016, officers searched
the defendant39;s residence and seized more than 180 grams
of suspected heroin and other drug paraphernalia. A federal
grand jury returned a two-count indictment on November 3,
2016, charging the defendant with possessing with the intent
to distribute fentanyl and heroin in violation of 21 U.S.C.
§ 841(a)(1). [Record No. 1] A jury trial is scheduled to
begin on May 15, 2017.
defendant contends that he needs to know the CI39;s
identity to prepare an adequate defense. However, the
government has a general privilege to withhold from
disclosure the identity of persons who provide information
regarding violations of law. Roviaro v. United
States, 353 U.S. 53');">353 U.S. 53, 59 (1957). This privilege furthers
the public interest in law enforcement by encouraging
citizens to report their knowledge of crimes. Id.
The privilege is especially important when it comes to
enforcing the drug laws, because the government must
necessarily rely on informants, who are effective only so
long as their identities remain secret. United States v.
Lloyd, 400 F.2d 414');">400 F.2d 414, 415 (6th Cir. 1968).
privilege, however, is not without limits. The privilege must
give way where the informant39;s identity, or the contents
of his communications, are “relevant and helpful to the
defense of an accused, ” or “essential to a fair
determination of a cause.” Roviaro, 353
U.S. at 60-62. While there is no fixed rule,
disclosure generally depends on “the particular
circumstances of each case, taking into consideration the
crime charged, the possible defenses, the possible
significance of the informer39;s testimony, and other
relevant factors.” Id. at 62. The danger to
the life of the informant is also given significant weight in
this analysis. United States v. Jackson, 990 F.2d
251, 255 (6th Cir. 1993).
defendant bears the initial burden of showing how disclosure
of an informant39;s identity would substantively assist his
defense. See United States v. Moore, 4 F.2d 379');">954 F.2d 379,
381 (6th Cir. 1992). This requires more than speculation that
the informant39;s identity would be helpful to his defense.
United States contends that, as a mere tipster who supplied
information which led to a search warrant, the
informant39;s identity should not be disclosed. Indeed,
courts generally deny disclosure when the informant merely
furnishes a tip. See Lloyd, 400 F.2d at 416.
However, disclosure has been required when the informant was
an “active participant in the events underlying the
defendant39;s potential liability.” United States
v. Sharp, 778 F.2d 1182, 1186 n.2 (6th Cir. 1985).
Notably, the defendant has not been charged with crimes
stemming from the drug buys themselves. The buys did not take
place at the defendant39;s residence and the CI was not
present during the search or at the time of the
defendant39;s arrest. The drug buys involving the CI do not
have a direct relationship to the charged criminal conduct.
Instead, they served as the basis to secure a search warrant
for the defendant39;s residence.
the defendant has not shown that the CI39;s testimony would
assist him in defending against the charged crime. The
defendant suggests that the CI could provide evidence that
the narcotics seized from his residence did not belong to the
defendant but belonged to the defendant39;s girlfriend,
Brittany Glisson. In support, he speculates that the CI might
have had a relationship with Glisson, which motivated the CI
to provide evidence to law enforcement that was damaging to
the defendant. [Record No. 36-3, 3');">p. 3] But this assertion
constitutes “mere conjecture or supposition about the
possible relevancy” of the CI39;s testimony and is
insufficient to warrant disclosure. See United States v.
Sales, 247 F.App39;x 730, 734 (6th Cir. 2007).
factors also counsel against compelled disclosure of the
CI39;s identity. If the government chooses to call the CI
as a trial witness, the defendant will be able to
cross-examine him or he. However, the defendant is not
entitled to early disclosure of the person39;s identity.
See, e.g., United States v. Perkins, 994
F.2d 1184, 1190-91 (6th Cir. 1993). Conversely, the United
States is required to provide the defendant reasonable notice
of the general nature of any 404(b) evidence to be used at
trial. The Court has construed “reasonable
notice” to be seven calendar days prior to trial.
[Record No. 10, p. 6] And while the United States is not
required to disclose the informant39;s identity under Rule
404(b), it has other obligations that address the
defendant39;s concerns regarding possible exculpatory
defendant contends that the United States must provide him
with any audio or video recordings of the controlled
purchases because they may contain exculpatory statements
regarding the defendant39;s intent (or lack thereof) to
distribute narcotics, as well as Glisson39;s possible role
in the conduct. While there is no general constitutional
right to discovery in a criminal case, the government is
required to disclose any impeachment evidence relating to
prosecution witnesses that is material and exculpatory, as
well as any evidence that is favorable to the accused that is
material to guilt or punishment. See, e.g., Giglio v.
United States, 405 U.S. 150');">405 U.S. 150, 153 (1972). See also
Brady v. Maryland, 373 U.S. 83');">373 U.S. 83, 87 (1963). There is no
hard and fast rule for when this material must be disclosed,
but it must be disclosed in time for effective use at trial.
the defendant contends that the United States is required to
produce certain evidence related to the controlled
transactions pursuant to Federal Rule of Criminal Procedure
16. Specifically, he argues that he should be provided copies
of the buy money, photographs of any controlled substances
seized from the CI, and copies of any laboratory testing
reports or any other reports verifying that the substances
were, in fact, controlled substances. Rule 16(a)(1)(E)
Upon a defendant39;s request, the government must permit
the defendant to inspect and copy or photograph books,
papers, documents, data, photographs, tangible objects,
buildings or places, or copies or portions or any of these
items, if the item is within the government39;s possession,
custody, or control and: (i) the item is material to
preparing the defense; (ii) the government intends to use the
item in its case-in-chief-at trial; or (iii) the item was
obtained from or belongs to the defendant.
requires an “indication that pre-trial disclosure [of
the disputed evidence] would have enabled the defendant to
alter the quantum of proof in his favor.” United
States v. Young, 553 F.App'x 585, 589 (6th Cir.
2014). While the government has not yet provided notice of
its intent to do so, it has suggested that it may introduce
evidence of the controlled buys as “other acts”
under Federal Rule of Evidence 404(b). Whether such evidence
is introduced through the CI or a police officer
(presumably), the government would attempt to show that the
defendant had the intent to commit the crimes charged.
Accordingly, to the extent the government intends to
introduce evidence of the controlled buys, it is obligated to
provide the defendant access to ...