United States District Court, D. Colorado
ORDER DENYING MOTION TO COMPEL DISCLOSURE
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
This
matter is before the Court on Defendant Andrew Raphael
Reese's Motion to Compel Disclosure. (Doc. # 20.) The
Government filed a Response (Doc. # 23) to the Motion on June
28, 2019. Based on the reasons that follow, the Court denies
Defendant's Motion.
I.
BACKGROUND
Defendant
was arrested on March 19, 2019, while the Denver Police
Department was conducting a narcotics operation. See
(Doc. # 23 at 2-6). During the operation, the police utilized
the assistance of a confidential informant (“CI”)
as well as surveillance technology. See
(id. at 1-2). After the operation concluded, the
“CI reported that prior to a hand-to-hand drug deal
with a female, the CI overheard the defendant tell this
female to watch out for police.” (Id. at 2.)
However, the statement that Defendant allegedly made was not
recorded even though the CI was wearing an audio recorder.
(Id.)
Defendant
was subsequently charged by indictment with a single count of
possession of a firearm and ammunition by a prohibited person
in violation of 18 U.S.C. § 922(g)(1). (Doc. # 1.) In
the instant Motion, Defendant argues that the Government
should be compelled to disclose “the identity, contact
information, as well as criminal history and impeachment
material of the [CI] that was involved in the present
case.” (Doc. # 20 at 1.) In support of his argument,
Defendant asserts that the discrepancy between the CI's
recollection of Defendant's alleged statement and the
absence of the statement on the audio recorder makes the CI a
“crucial witness” to “a statement that
would bear on [Defendant's] involvement, or lack thereof,
in drug activity on the date of [his] arrest.”
(Id. at 4.)
II.
LEGAL STANDARD
Because
of the strong public interest in effective law enforcement
and to encourage citizens to communicate with government
officials regarding unlawful activity, “the government
enjoys a privilege to withhold from disclosure the identity
of persons who furnish law enforcement officers with
information on criminal acts.” United States v.
Mendoza-Salgado, 964 F.2d 993, 1000 (10th Cir. 1992).
Nevertheless, this privilege must give way when disclosure of
an informant's identity “is relevant and helpful to
the defense of an accused, or is essential to a fair
determination of a cause.” Id. (quoting
Rovario v. United States, 353 U.S. 53, 60-61
(1957)). In Roviaro, the Supreme Court articulated a
balancing test for the determination of whether a
confidential informant's identity should be revealed:
[N]o 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.
353 U.S. at 60-62. In United States v. Moralez, 908
F.2d 565 (10th Cir. 1990), the Tenth Circuit further
described this balancing test as follows:
[C]ases involving confidential informants fall into several
broad categories. 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 (citations omitted).
“Where
it is clear that the informant cannot aid the defense, the
government's interest in keeping secret [the
informant's] identity must prevail over the
defendant's asserted right of disclosure.”
United States v. Sinclair, 109 F.3d 1527, 1538 (10th
Cir. 1997). Accordingly, “[d]isclosure of an informant
is not required . . . where the informant is not a
participant in or a witness to the crime charged.”
Moralez, 908 F.2d at 567. Additionally, a defendant
must provide more than “mere speculation about the
usefulness of an informant's testimony” to warrant
disclosure. Moralez, 908 F.2d at 567. Specifically,
a defendant seeking to force disclosure of an informant's
identity has the burden to show the informant's testimony
is relevant or essential to the fair determination of
defendant's case. United States v. Gordon, 173
F.3d 761, 767 (10th Cir. 1999) (citing Roviaro, 353
U.S. at 62).
III.
ANALYSIS
In the
instant case, Defendant has not met his burden of showing
that disclosure of the CI's identity is warranted. As a
preliminary matter, there is no evidence that the CI was a
witness to the only crime with which Defendant is
charged-i.e. possession of a firearm by a prohibited person.
Moreover, the statement at issue-i.e. Defendant's alleged
statement that his associate should be on alert for the
police-is not relevant to whether Defendant impermissibly
possessed a firearm. See Fed. R. Evid. 401
(“Evidence is relevant if: (a) it has any tendency to
make a fact more or less probable than ...