BARRY J

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

UNITED STATES OF AMERICA,

Plaintiff,

CHAY TO,

Defendant.

)

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

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.^[1] 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.