BARRY J. PORTMAN
Federal Public Defender
STEVEN G. KALAR
Assistant Federal Public
Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
Counsel for Defendant XXXX
XX
IN THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN
DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
Plaintiff,
v.
CHAY TO,
Defendant.
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No. CR 00-000X XXX
DEFENDANT=S MOTION TO REVEAL THE
IDENTITY OF THE CONFIDENTIAL INFORMANT
Hearing Date: Wednesday, April 30,
2003 at 2:30 pm
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TO: UNITED
STATES ATTORNEY, PLAINTIFF; AND KEVIN V. RYAN, UNITED STATES ATTORNEY, NORTHERN
DISTRICT OF CALIFORNIA; AND BARBARA B. SILANO, ASSISTANT UNITED STATES ATTORNEY
PLEASE TAKE
NOTE that on April 30, 2003, Mr. XXXX XX will move this Court to reveal the
identity and location of a confidential informant employed in the
above-entitled case. This motion is
based on the constitution of the United States, all relevant statutory
authority and case law, the following memorandum of points and authorities, and
such argument at the Court will entertain at the April 30 hearing.
Introduction
In this
motion, Mr. XX seeks disclosure of the identity and address of a confidential
informant used by the San Francisco Police Department for an alleged controlled
sale of methamphetamine, who provided information relied upon as probable cause
for a search warrant.
Background
I. The
Defendant is a Mentally-Ill Political Refugee
Mr. XXXX XX
is a forty-five year old man with no significant criminal history, and no
felony convictions. Although he is
ethnically Chinese, Mr. XX was born in Cambodia in 1975. He and his family were victims of the
terrible conflict in that country, and they eventually became political
refugees B first to Thailand, and
then to the United States.
Mr. XX and
his family still bear the scars of their experiences in Southeast Asia. Mr. XX=s brother, for example, is severely disabled
because of mental infirmities. The
defendant XXXX XX also suffers from serious mental illness problems.
Mr. XX
currently receives social security benefits for his disability, and has done so
fifteen years. He takes various
medications relating to his mental illness, and was under a prescription for
this medication on December 3, 2002 B the date of this alleged offense. See Exhibit
A, Evaluation Report (AREPORTS RECENT PSYCHIATRIC
MEDS RX/LAST DOSE/MD/PHONE NUMBER/VERIFIED MELLARIL AND TRAZADONE, UNK DOSES,
APPROXIMATELY 1 YEAR AGO, FROM SFGH, DETAILS UNKNOWN.@) After his arrest on these charges, Mr. XX was seen by physicians
while he was in state custody. During
these evaluations B contemporaneous with the
allegations that underlie the present case B Mr. XX was considered to be bi-polar, admitted
that he had been off of his medication, and reported hearing voices. See id.
II. A Confidential Reliable Informant
Convinces a Mentally-Ill Man to Allegedly Sell Methamphetamine
The heart of this relatively straightforward case
is a confidential Areliable@ informant (ACRI@) used by the San Francisco
police department. According to a search warrant affidavit by
San Francisco Police Officer Kevin Healy, #579, this informant provided
information regarding Mr. XX as early as November 17, 2002:
Within ten days of 11-27-02, Officer
Guerrero #1162 and I [Officer Kevin Healy, #579] met with a confidential
reliable informant, hereafter to be referred to as CRI. This CRI has provided us with information in
the past year that has resulted in felony narcotics arrests and the seizure of
several ounces of cocaine salt. This
CRI does not have any criminal cases pending, and is receiving monetary
compensation for his/her information.
The CRI has conducted controlled buys for us in the past year where
illegal narcotics were seized. The CRI
told us that he/she could purchase methamphetamine from an Asian male who
he/she knew as AChino.@ The CRI told
us that AChino@ was 40-45 years of age, 5'7" and weighs
approximately 150 pounds. The CRI told
us that he has seen AChino@ in the past month driving two different vehicles . .
. . The CRI told us that he/she believed that AChino@ lived in the area of 29th Street between Mission
Street and San Jose Avenue.
Exhibit B, Search Warrant
& Affid. of SFPD Officer Kevin Healy at 13.
Again as
early as November 17, 2002, the CRI allegedly convinced the mentally-ill
defendant to agree to a controlled-sale of methamphetamine. Id. at
13-14.
Based on the
information from the informant and the alleged controlled sale, the officers
procured a search warrant on November 27, 2002 B and did not bother to serve it until December 3,
2002. Id. at Bates 11. Nothing within the search warrant or
application explains the delay of up to seventeen days between the date when
the damning information was secured, and the date that the warrant was actually
signed. See id.
The search
warrant did not authorize a night search.
See Exhibit B at Bates 11.
Although the warrant did not authorize a night search, the officers
searched Mr. XX=s home at 8:00 pm on
December 3. Exhibit C, SFPD
Police Report No. 021374991 at Bates 9. On December 3, 2003, sunset was at 4:51 pm,
and civil twilight ended at 5:20 pm. See
Exhibit D, U.S. Naval Observatory, Astronomical Applications Dept.,
http://aa.usno.navy.mil/cgi‑bin/aa_pap.pl (visited Mar. 13, 2003).
The search
of the home allegedly produced a number of items. From within a safe found in a room attributed to Mr. XX, the
officers allegedly recovered methamphetamine, powder cocaine, a .38 caliber
handgun, gold and silver coins, money, and indicia. Id. From within
the room itself the officers allegedly recovered methamphetamine, marijuana,
scales, glass pipes, pay-owe sheets, hydrocodane pills, ammunition,
bullet-proof vests, two knives, and indicia.
Id. at 10. From within a
Monte Carlo car the officers allegedly recovered methamphetamine and
marijuana. Id.
On January 7
of this year, defense counsel requested disclosure of sixteen areas of
information in a three-page letter to AUSA Silano. See Exhibit E, Letter of Kalar to Silano re: Discovery of Jan.
7, 2003. This was followed by a
second letter again requesting discovery on March 12, 2003. See Exhibit F, Letter of Kalar to Silano
re: Discovery of Mar. 12, 2003.
Although it has been specifically requested by the defense, to date the
government has provided no fingerprint analysis of any of the items recovered
pursuant to the December 3 search.
Despite defense request, the defense has also not yet received any photographs
or sketches relating to the controlled sale or search, or any audio or video
recordings of either event. Id.
Discussion
This Court
should order disclosure of the identity of the confidential informant,
disclosure of Giglio material relating to the informant, and should
produce the informant for defense interviews.
I. This
Court Should Order Disclosure of the Identity of the Confidential Informant
Mr. XX is entitled to disclosure of the
identity and location of the informant, and to all communications between the
informant and the government, if the informant may provide exculpatory material
or is a percipient witness to any of the charged conduct. See Roviaro v. United States, 353 U.S. 53, 60-61 (1957); see also United States v. Bonilla, 615 F.2d 1262, 1264 (9th Cir. 1980). Here, because the informant was an integral
part of the government=s effort to solicit narcotics from Mr. XX, and because
the informant had contact with Mr. XX before the alleged controlled sale, his
identity must be disclosed.
In Roviaro, the Supreme Court
recognized a limited government privilege to withhold the identity of an
informant. This privilege must give
way, however, Awhere the disclosure of an informant=s identity or the content of his communications is relevant
and helpful to the defense of an accused, or is essential to the fair
determination of a cause.@ Roviaro, 353
U.S. at 60-61.
The facts of Roviaro case
well-illustrate the necessity of disclosure in the present case. The Court=s
description of the issue presented in Roviaro is prescient of the
informant=s role in the XX matter:
The principle issues is whether the
United States District Court committed reversible error when it allowed the
Government to refuse to disclose the identity of an undercover employee who had
taken a material part in bringing about the possession of certain drugs by the
accused, had been present with the accused at the occurrence of the alleged
crime, and might be a material witness as to whether the accused knowingly
transported the drugs as charged. For the
reasons herein stated, we hold that, under the circumstances here present, this
was reversible error.
Id. at 55.
In Roviaro, the informant played
a material part in arranging the drug sale; so to in the case now before the
Court. In Roviaro, the informant
was present when the drug sale took place; so to in the case now before the
Court. In Roviaro, the informant
might have been a material witness on the ultimate guilt of the defendant; the
same is true for the present informant and Mr. XXXX XX. In Roviaro, failure to disclose the
informant was reversible error; in the present case, disclosure of the
informant is required.
XX warrant disclosure under Roviaro,
the defendant must have Amore than a >mere
suspicion= of the value of the informant=s identity.@ United
States v. Amador-Galvan, 9 F.3d 1414, 1417 (9th Cir. 1993). Mr. XX has far more than a Amere suspicion@ of the
value of the informant in his case B indeed,
the government relied upon the informant as the sole conduit by which to reach
Mr. XX, and as the sole basis for the search warrant application. This Court should accordingly order
disclosure of the confidential informant under the Roviaro balancing
test.
A. The Roviaro Balancing
Factors Favor Disclosure
Once B as here B the
defendant has shown that an informant is a percipient witness, the Court must
then Aapply a balancing test, weighing the public interest
in encouraging citizens to inform the government about criminal activity,
against an accused=s right to prepare his defense.@ Amador-Galvan,
9 F.3d at 1417. The Roviaro balancing
depends on the unique circumstances of each case, but the factors include:
! The nature of the crime charged;
! The possible defenses;
! The significance of the informant=s testimony;
! Other relevant factors.
Id. at 62.
Each factor is discussed in turn.
1. No
safety concerns weigh against disclosure
One factor in the Roviaro
balancing test is the government=s
interest in protecting the safety of the informant. See United States v. Sai Keung Wong, 886 F.2d 252, 255 (9th Cir. 1989). Nothing in Mr. XX=s past suggests that he presents any danger to the
informant. Notably, Mr. XX has no prior
conviction in his past for any crime of violence B indeed,
he does not appear to have any felony conviction of any sort. Nothing in the discovery produced by the
government suggests that Mr. XX ever made any threats to the informant B or indeed, to any individual.
There were admittedly a number of
weapons, ammunition, and bullet-proof vests that were seized in the search of
Mr. XX=s home. The
government has not shown, however, that Mr. XX ever handled these weapons B there is, for example, a conspicuous absence of
fingerprint evidence associated with any of these items. Moreover, this material has all been seized,
and is no longer available to the defendant.
Finally, undersigned counsel is
informed and believes that a man believed to be the informant is still out of
custody, and still visits Mr. XX=s
neighborhood in the Mission. If either
the government of the informant legitimately feared for the informant=s safety, he would not be permitted to casually return
to this very neighborhood where contact with the defendant is most likely.
In the absence of a particularized
showing by the government of a danger to the informant posed by Mr. XX, and a
determination by the Court that this factor outweighs his right to prepare a
defense, the informant must be disclosed.
Even should the government put the
informant=s safety at issue, it would be Aerror of constitutional dimension to deny disclosure
solely because of the potential danger.@ United States v. Ordonez, 737 F.2d 793, 809 (9th Cir. 1983). Rather, the Court must then balance the
safety concerns against the right to prepare a defense, taking into
consideration the other Roviaro factors, in order to ensure Athe preservation of due process.@ Id. at
808.
2. The crime charged was not violent
The nature of this case is exactly the
type that supports disclosure. This
involves a simple drug sale B identical to the case that warranted disclosure in Roviaro. There are no other co-defendants involved,
no allegations of a conspiracy, and not a whisper of any violent conduct or
threats. A straightforward drug sale B with no threatening co-defendants or co-conspirators B is precisely the type of matter that the Court
anticipated would warrant disclosure in Roviaro.
3. The informant is necessary for XX=s defense
The informant=s unique knowledge of the facts underlying this case
makes his disclosure necessary to the defense.
First, the informant is a percipient witness to the one drug sale
alleged in the case, and is a percipient witness to the only event providing
probable cause for the search warrant application. Just like the defendant in the Roviaro case, Mr. XX is
charged with possession of drugs for sale.
As in Roviaro, the informant was a participant witness who is
material to the issue of both possession of the drugs, and the intent to sell
drugs.
The Supreme Court=s articulation of the Anecessity@ of the informant disclosure in Rovario leaves
no room for the government to fairly contest disclosure in Mr. XX=s case:
So far as petitioner knew, he and [the informant] were
alone and unobserved during the crucial occurrence for which he was
indicted. Unless petitioner waived his
constitutional right not to take the stand in his own defense, [the informant]
was his one material witness.
Petitioner=s opportunity to cross-examine [the officer and agent]
was hardly a substitute for an opportunity to examine the man who had been
nearest to him and took part in the transaction. [The informant] had helped to
set up the criminal occurrence and had played a prominent part in it. His testimony might have disclosed an
entrapment. He might have thrown doubt
upon petitioner=s identity or on the identity of the package. He was the only witness who might have
testified to petitioner=s possible lack of knowledge of the contents of the
package that he >transported= from
the tree to [the informant=s] car. The
desirability of calling [the informant] as a witness, or at least interviewing
him in preparation for trial, was a matter for the accused rather than the
Government to decide.
353 U.S. at 64 (emphasis added).
The Supreme Court could have well have
been writing about Mr. XX=s predicament in the present case. The informant is the one material witness in
the case, was nearest to Mr. XX and took place in the drug transaction. The informant helped set up the criminal
occurrence with Mr. XX and the informant played a prominent part in it. Moreover, the informant could play a
critical role in an entrapment defense.
The desirability of interviewing the informant in preparation for trial Ais a matter for [Mr. XX] to decide.@ Mr. XX has
decided that such an interview is essential B the
informant should be disclosed.
a. The informant is necessary to an
entrapment defense
Mr. XX has no prior drug-related convictions or
arrests. He is also a mentally-ill man
who had a long history of treatment for his maladies in San Francisco. In short, he is a citizen who would be particularly
susceptible to inducement by an overreaching government informant. Accordingly, one defense at trial is
accordingly likely to be entrapment, and B more specifically B sentencing entrapment.
After Apprendi,
the amount of drugs now appears to a fact that must be plead and proved
to the jury. The theory formerly known
as Asentencing entrapment@ is therefore now a defense
that must be raised at trial. XX permit
Mr. XX to prepare for and evaluate this defense, this Court must compel the
disclosure of any confidential informants in this case, as well as all
impeachment information relating to the informant.
A pre-Apprendi
Ninth Circuit decision well-illustrates the role that Asentencing entrapment@ will now play in the trial
itself. In United States v. Thomas, 134 F.3d 975 (9th Cir. 1998),
the Ninth Circuit considered the predisposition of a defendant who was accused
of selling three pounds of methamphetamine.
The defendant B who had previously only
sold several $20 doses of the drug B raised an entrapment defense at trial. See id. at 978. As
in the present case, the defendant in Thomas had no prior convictions for drug-related
crimes.
The Court in
Thomas explained that Athe government had the
burden of proving beyond a reasonable doubt that Thomas was predisposed to
engage in a drug transaction involving three pounds of methamphetamine,
at a purchase price of $25,000." Id. at 979 (emphasis added). The court described the issue as Apredisposition B and specifically, predisposition to engage in a
drug transaction involving multiple pounds of methamphetamine . . . .@ Id. (emphasis added).
The central issue at the guilt phase was therefore not whether the
defendant was predisposed to undertake an illegal act, nor whether he was
predisposed to engage in drug sales, but rather whether the defendant was
predisposed to engage in the degree of illegal conduct that was charged
as an offense.
As in Thomas,
one of the issues at Mr. XX=s trial would likely be
whether the defendant B even if predisposed towards involvement with small amounts of
drugs B was entrapped by
government informants to sell greater quantities of the drug. See e.g., United States v. Staufer, 38 F.3d 1103, 1108 (9th
Cir. 1994) (considering B in review of conviction
B predisposition of defendant
who had sold small quantities of LSD and who was not predisposed to engage in a
drug deal of magnitude; affirming conviction in light of high standard
associated with acquittal as a matter of law); see also United States v. Ramirez-Rangel, 103 F.3d
1501, 1505-08 (9th Cir. 1997) (concluding that the district court erred by
denying a motion to reveal the identity of a confidential informant when it
failed to hold Aan in camera hearing
to determine whether the informant's testimony would be relevant and helpful to
the defendants on the question of sentencing entrapment.@).
In light of Thomas,
Mr. XX would be entitled to disclosure of the identity of the confidential
informant and relevant information about the informant even if drug amounts
were not an aspect of the case that had to be proved at trial beyond a reasonable
doubt. Because, however, drug type and
amount must be proved in the trial itself after Apprendi, Mr. XX is
certainly entitled to speak to and investigate the central percipient witnesses
of the alleged sale.
In the post-Apprendi
world (where drug type and amounts are essential matters for the jury=s consideration) meeting
with and investigating an informant is central the defense of entrapment B and particularly
sentencing entrapment.
4. Other relevant factors support disclosure
AOther relevant factors@ at issue in Roviaro
include concerns such as Alessen[ing] the risk of
false testimony@ and aiding in Asecur[ing] useful
testimony.@ McLawhorn v. State
of North Carolina, 484 F.2d 1, 4-5 (4th Cir. 1973). Disclosure of the informant=s identifying information
would lessen the risk of false testimony by the informant and any testifying
officers, and would aid Mr. XX in securing exculpatory evidence by permitting
him to potentially secure the testimony of the informant.
Mr. XX=s right to prepare a
defense far outweighs the general interest in the informant=s safety B particularly in the
absence of any particularized showing of danger by the government. Mr. XX=s experience in earlier detention litigation is
illuminating.
Before Mr.
XX appeared before this Court, he underwent a series of hotly-contested
detention hearings before the Honorable Joseph Spero. The government B who strongly opposed Mr.
XX=s release B did not hesitate to
present a host of arguments in support of the defendant=s continued detention. The government never made any particularized
showing, however, that Mr. XX=s release would pose any
danger to the informant. Nothing has
changed since these detention hearings, and there is no particularized showing
of danger that can be made by the government.
Should the
government produce material now unknown to Mr. XX and make a particularized
showing of danger to the informant, Mr. XX moves the Court to conduct an in
camera hearing and develop a factual record regarding the Roviaro
factors. See, e.g., United States v. Spires, 3 F.3d 1234, 1238 (9th
Cir. 1993) (reversing district court's denial of motions to suppress and to
disclose informant in light of court's failure to hold in camera
hearing; once the defendant makes Aminimal threshold showing@ of relevance, Athere is ordinarily no
governmental interest to balance against the defendant's in deciding whether to
hold an in camera hearing@); see also Amador-Galvan, 9 F.3d at 1416-17 (reversing and
instructing district court to conduct in camera hearing concerning
whether the names of the confidential informants had to be disclosed, because
defendants had established Athe potential relevance and
helpfulness to their defense of discovering the identity of the confidential
informants.@).
Given the
government=s past efforts before Judge
Spero, however, it is not anticipated that the government will be able to make
a particularized showing of danger.
This Court should accordingly order the immediate disclosure the informant=s identifying information.
B. Roviaro
Also Requires Disclosure Of Identity And Location
The rule enunciated in Roviaro requires not
only disclosure of the informant=s identity, but also his location and his
communications with the government. See
Roviaro, 353 U.S. at 60-61. This identifying information enables defense counsel to contact
the informant and meaningfully investigate such issues as background and
credibility. See United States v. Hernandez, 608 F.2d 741, 745 (9th
Cir. 1979) (acknowledging that address of principal witness is an integral
element of identity).
The
government=s duty to disclose does not
stop with this information B Mr. XX further requests
that the informant be produced for an interview. The Ninth Circuit has held that the government has an obligation
to Aaccomplish this or show
that, despite reasonable efforts, it was not able to do so.@ United States v. Hart, 546 F.2d 798, 798-99 (9th
Cir. 1976) (en banc); see also United States v. LaRizza, 72 F.3d 775, 779 (9th
Cir. 1995) (reaffirming that the government Ais required to exert reasonable efforts to produce
an informant whenever the informant=s presence has been properly requested by the
defendant@).
II. This
Court Should Order Disclosure of Material Related to the Informant
A focal
point of Mr. XX=s case will be the reliability
of an informant who is central to any entrapment defense. The Court should
accordingly order disclosure of the following information as to the informant:
1.
The full identity of any cooperating source against Mr. XX;
2.
The present location, address, and phone number of the
informant, or some method by which a defense investigator can interview him;
3.
Any information regarding any payments, whether moiety,
expense, or otherwise, made to any informant, including but not limited to
copies of any pay sheets, payment requests, and vouchers in this or other
cases;
4.
Any information regarding monies or expenses and any rewards
paid to any informant pursuant to 28 U.S.C. '
524(c)(1)(B), (C), or paid pursuant to state authority, in this or other cases;
5.
Any information regarding any payments, whether moiety,
expense, or otherwise, made to the friends or family of any informant in
relation to his or her work as a confidential source in this or other cases;
6.
Any information or instructions given to any informant
regarding his or her obligation to pay taxes on money provided by the
government;
7.
Copies of any written agreements that any informant entered
into concerning his or her status and work as a cooperating witness;
8.
Any information calling into question the credibility of any
informant and the details of any instances in which any informant in this case
has been discovered to have been untruthful or dishonest, including but not
limited to cross-examination of the informant, instances in which a warrant
based on the statements of the informant was not issued, and other facts that
have come to the government's attention regarding the credibility of the
informant;
9.
All debriefing reports from the informant;
10.
Any instructions given to the informant regarding entrapment;
11.
All information regarding any expectations that the informant
may have at sentencing;
12.
All information regarding any promises of immunity, leniency,
or preferential treatment in this or any other case;
13.
All information or records of actual or implied threats B such as criminal investigation,
prosecution, deportation, or exclusion B
made by the government to the informant or the informant=s
family or friends;
14.
All copies of any Presentence Reports or state probation
reports regarding any informant;
15.
All information regarding any informant prior bad acts,
including all records of arrests and convictions, and of activities which law
enforcement officials investigated but did not prosecute;
16.
All information or records regarding intervention by federal
or state law enforcement authorities to state regulatory agencies on behalf of
the informant;
17.
All information regarding the seizure or threatened seizure of
the informant=s assets;
18.
All information regarding any polygraph examination of the
informant, the results of those examinations, and questions asked during all
polygraph examinations;
19.
All information regarding the mental impairment of any
informant;
20.
All information regarding narcotic or alcohol dependency for
the informant, including any occasions when law enforcement officers have
observed the informant under the influence of a controlled substance;
21.
All statements of the informant, including but not limited to
his:
a.
Statements upon initial arrest;
b.
Statements during interviews by pre-trial services;
c.
Statements at his or her initial appearance;
d.
Statements made in a proffer by his or her counsel to the
government;
e.
Statements made during interviews by case agents or law
enforcement personnel;
f.
Statements made during interviews by any Assistant United
States Attorney or an Assistant District Attorney;
g.
Statements made during testimony before a grand jury;
h.
Statements made at any plea colloquy;
i.
Statements made during later interviews with case agents;
j.
Statements made during any presentence report interview with
probation;
k.
Statements made during pre-trial preparation in the present
case.
22.
The rough notes of government agents or police officers made
in relation to any informant=s
statements requested in item number 21.
The Supreme Court=s
decision in Brady requires the government to furnish the defendant with
all favorable evidence relevant to the issue of guilt or punishment. See Brady v. Maryland,
373 U.S. 83 (1963). The Ninth Circuit
encourages a liberal construction of the Brady disclosure rule: "[A]n elemental sense of fair play
demands disclosure of evidence that in any way may be exculpatory . . . . [T]he
government should resolve all doubts in favor of disclosure . . . since
disclosure could cause no harm to the Government while suppression could very
well prejudice the defendant." United States v. Miller, 529 F.2d
1125, 1128 (9th Cir. 1976).
Evidence impeaching the credibility of a government witness falls
under the Brady doctrine. See
Giglio v. United States,
405 U.S. 150, 153-55 (1972); see also United States v. Shaffer, 789 F.2d
682, 687 (9th Cir. 1986). The fact that
exculpatory evidence may concern an informant does not relieve the government
of its burden under Brady. See United States v. Van
Brandy, 726 F.2d 548 (9th Cir. 1984).
The Ninth Circuit emphasized the importance of impeachment material
against informants in its decision in Singh v. Prunty, 142
F.3d 1157(9th Cir. 1998). In Singh,
the court granted the habeas petition of an inmate convicted of murder and
solicitation to commit murder. See
id. at 1158. The prosecutor had
failed to disclose material exculpatory evidence to the petitioner;
specifically, the benefits an informant had received for his testimony. See id. at 1159. Despite considerable evidence of
petitioner's guilt, the court in Singh found the
failure to disclose the informant's benefits fatal to the State's case:
[O]ur fundamental
concern remains whether there exists a reasonable probability that given
disclosure of the evidence of benefits to [the informant], one or more members
of the jury would have viewed [the informant's] testimony in a different
light. Given the importance of [the
informant's] testimony to the prosecution's case, and the impact the disclosure
of evidence of the benefits provided to [the informant] could have had on [his]
credibility, we believe there is a reasonable probability that had the evidence
been disclosed to the defense, one or more members of the jury could have
viewed [the informant's] testimony differently.
Id. at 1163.
The informant in this case is as important to Mr. XX as was the
informant shielded by the prosecutor in Singh. Despite the centrality the informant and repeated requests from
the defense, the government has not produced central information about this key
percipient witness. It is the
government's obligation to affirmatively seek out evidence from the law
enforcement officers who cooperated in this investigation; Athe individual prosecutor has a duty to
learn of any favorable evidence known to others acting on the government's
behalf in the case, including the police.@ Kyles v. Whitley,
514 U.S. 419, 437 (1995). The
government thus has the obligation to interview the informant=s supervising officers, chronicle their
previous investigations, and produce records of all payments made to them.
Mr. XX is also entitled to summaries of all discussions that the
informant had with officers about methamphetamine, and rewards for securing
greater amounts of the drug. This
information is important impeachment evidence which, Aas
well as exculpatory evidence, falls within the Brady rule.@
United States v. Bagley,
473 U.S. 667, 676 (1985). It bears
emphasis that the police reports suggest law enforcement ultimately controlled
the scope and nature of the controlled sale; it was, after all, government
funds that were used to purchase the drugs.
The SFPD officers must have accordingly discussed the nature and scope
of the sale with the informant before he engaged Mr. XX.
"When the state decides to rely on the testimony [of an
informant], it is the state's obligation to turn over all information bearing
on that witness's credibility." Carriger
v. Stewart, 132 F.3d 463, 480 (granting writ of habeas corpus when state
failed to provide impeachment information regarding informant from informant's
corrections file). Central to Mr. XX=s case will be the testimony of any
informant or confidential source. This
Court should compel the government to produce all information bearing on these
witness=
credibility.
Conclusion
For the foregoing reasons, the Court should order the following: 1)
Immediate disclosure of the identity and address of the informant; 2)
Production of the informant for defense interview; 3) Disclosure of information
listed above, relating to the informant=s
credibility and relating to Mr. XX=s
anticipated entrapment defense.
Dated: March 19, 2003
Respectfully
submitted,
BARRY J. PORTMAN
Federal Public
Defender
STEVEN G. KALAR
Assistant Federal Public Defender
Table
of Contents
Introduction....................................................................................................................................... 1
Background....................................................................................................................................... 1
I. The Defendant is a Mentally-Ill Political Refugee..................................................................... 1
II. A Confidential Reliable Informant Convinces a Mentally-Ill
Man to
Allegedly Sell Methamphetamine................................................................................................................. 2
Discussion......................................................................................................................................... 3
I. This Court Should Order Disclosure of the Identity
of the Confidential Informant............................................................................................................................................. 3
A. The Roviaro Balancing Factors
Favor Disclosure....................................................... 5
1. No safety concerns weigh against
disclosure................................................... 5
2. The crime charged was not violent.................................................................. 6
3. The informant is necessary for XX=s defense................................................... 6
a. The informant is necessary to an
entrapment defense........................... 7
4. Other relevant factors support
disclosure........................................................ 9
B. Roviaro Also Requires Disclosure
Of Identity And Location.................................... 10
II. This Court Should Order Disclosure of Material Related to
the Informant.............................. 11
Conclusion...................................................................................................................................... 15
Information in this section of the Statement of Facts is taken
from discovery produced thus far by the government and is provided for the
convenience of the Court. Recitation of
facts taken from this discovery is not a concession as to their accuracy.