United States District Court, D. Colorado
ORDER GRANTING MOTION FOR DISCLOSURE OF CONFIDENTIAL
INFORMANT
William J. Martinez United States District Judge
The
Government charges Defendant Jesus Antonio Garcia-Martinez
(“Defendant”) with conspiracy to distribute
heroin, and also with possessing heroin with intent to
distribute. Currently before the Court is Defendant's
Motion for Disclosure of Confidential Informant. (ECF No.
67.) For the reasons explained below, the Court grants this
motion, with certain conditions.
I.
BACKGROUND
The
Government alleges that the confidential informant
(“CI”) was stopped on the highway in Utah by the
Utah State Patrol on February 18, 2018. (ECF No. 63 ¶
1.) Somehow those officers learned that the purpose of the
CI's travels was to transport seventeen pounds of heroin
from California to Denver. (Id.) He had made this
same trip, with the same purpose, many times before, having
most recently made a delivery four days earlier. (ECF No. 73
¶¶ 6, 16.) The CI agreed to cooperate with law
enforcement (that is, to become a CI) and was handed off to
the Drug Enforcement Administration (“DEA”) so
that the DEA could orchestrate a controlled delivery of the
CI's heroin at its destination in Denver. (ECF No. 63
¶ 1.)
The
controlled delivery took place the following day, February
19, 2018, at an apartment in Lakewood, Colorado.
(Id. ¶ 2.) The CI wore a body wire to transmit
the sounds from inside the apartment to the DEA.
(Id.) The DEA also treated the outside of the heroin
packages with a substance that shows up under black light.
(ECF No. 73 ¶ 10.)
When
the CI entered the Lakewood apartment, Gilberto
Guerrero-Flores (who became the first-named defendant in this
prosecution) was already there. (Id. ¶ 8.) A
call was then placed from Guerrero's phone to
Defendant's phone. (Id.) Soon after, DEA agents
observed Defendant approaching and then entering the same
apartment. (Id. ¶ 9.)
About
five minutes later, the CI left the apartment and DEA agents
moved in. (Id. ¶ 10.) A black light revealed
the substance with which the heroin packages had been treated
on both Guerrero's and Defendant's hands.
(Id.) The DEA also retrieved $7, 000 in cash from
the CI, who reported that he had received $3, 000 from
Guerrero and $4, 000 from Defendant while inside the
apartment. (Id. ¶ 11.)
In
post-arrest interviews, Guerrero essentially corroborated the
CI's story. (Id. ¶ 12.) Defendant, for his
part, admitted picking up one of the heroin packages but
“denied involvement in drug trafficking and stated he
was in the United States to buy bicycles to send back to
Mexico.” (Id. ¶ 13.)
II.
ANALYSIS
“Due
to the strong public interest in furthering effective law
enforcement, the government enjoys a privilege to withhold
from disclosure the identity of persons who furnish law
enforcement officers with information on criminal acts. While
anonymity encourages citizens to communicate their knowledge
of unlawful activity, the privilege must give way to fairness
when disclosure of the informer's identity ‘is
relevant and helpful to the defense of an accused, or is
essential to a fair determination of a cause.' The need
for disclosure depends 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.'” United States v.
Mendoza-Salgado, 964 F.2d 993, 1000 (10th Cir. 1992)
(quoting Roviaro v. United States, 353 U.S. 53,
60-62 (1957)). To carry the burden of requiring such
disclosure, a defendant “must present more than mere
speculation about the possible usefulness of an
informant's testimony.” United States v.
Moralez, 908 F.2d 565, 567 (10th Cir. 1990).
The
Tenth Circuit has endorsed the Fifth Circuit's
articulation of two poles between which most requests for
disclosure of confidential information will fall: “At
one extreme are the cases where the informant is a mere
tipster, and disclosure is not required. At the other extreme
are cases such as Roviaro itself where the informant
has played a crucial role in the alleged criminal
transaction, and disclosure and production of the informant
are required to ensure a fair trial. In addition, 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. at 568 (citing, inter alia, United
States v. Fischer, 531 F.2d 783, 787 (5th Cir.1976)).
This
case is plainly one where the informant has played a crucial
role in the alleged criminal transaction. Excluding Defendant
himself, the CI was one of only two eyewitnesses to what
actually happened in the Lakewood apartment. Both of them
conceivably have a motive to place blame on Defendant,
thereby potentially securing the Government's agreement
to leniency. The Court understands that Defendant's story
about being a bicycle dealer in the wrong place at the wrong
time seems farfetched. However, the CI says that he had made
numerous of these drug courier journeys to Denver, and so
could conceivably offer longitudinal information that could
assist in Defendant's defense at least against the
conspiracy charge. He may also be able to offer information
about the extent to which Defendant and Guerrero can be
deemed to have conspired.
At a
minimum this is a case where there is a slight possibility
that Defendant might benefit from disclosure and the
Government has not demonstrated a compelling need to
protect the CI. See Moralez, 908 F.2d at 568. The
Government's only statement in support of its interest in
nondisclosure is the generic assertion that “[t]he
dangers for a civilian who acts in support of law enforcement
in a large-scale heroin case are hard to exaggerate. The
Government respectfully asks the Court to give consideration
to the potential consequences of publishing the name of such
a cooperator unless it is truly necessary to do so.”
(ECF No. 73 ¶ 1.) Under the circumstances, the danger of
having one's identity revealed-which is present in nearly
every case-is not enough to overcome Defendant's interest
in a fair trial. Moreover, the Court has no intent to
“publish” the CI's name. The Court will order
that the Government must disclose the CI to Defendant's
counsel but that Defendant's counsel is prohibited from
disclosing that name to Defendant himself without prior Court
authorization.
III.
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