The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE
The defendants have been charged in a six-count indictment with conspiracy to distribute 50 grams or more of a mixture and substance containing cocaine base between September 21 and October 5, 1989, (21 U.S.C. §§ 846, 841(b)(1)(A)(iii), distribution of 5 grams or more of a mixture and substance containing cocaine base on September 27, 1989, (21 U.S.C. § 841(b)(1)(B)(iii)), distribution of 5 grams or more of a mixture and substance containing cocaine base on October 4, 1989, (21 U.S.C. § 841(b)(1)(B)(iii)), distribution of a mixture and substance containing cocaine base on October 4, 1989,
distribution of a mixture and substance containing 50 grams or more of cocaine base on October 5, 1989, (21 U.S.C. § 841(b)(1)(A)(iii)), and possession of a pistol without a license on December 6, 1989, (D.C.Code Ann. § 22-3204).
This matter is before the Court on defendants' Motion to Compel the Disclosure of All Informers Who Participated in the Alleged Crimes Charged in this Case.
Particularly, the defendants seek the disclosure of an informant known only as "Mr. Hassan". Defendant Khosravi contends that Mr. Hassan's disclosure is critical to his defense to the conspiracy charges. Defendant Moghadam, although he cannot make the same representations as defendant Khosravi, also feels that the informant's identity would be helpful to his case. The government opposes the disclosure of the identity of the informant. The Court heard oral argument on the motion on March 13, 1990.
On September 21, 1989, a confidential informant introduced Clyde Shelly, an undercover Drug Enforcement Administration agent to defendant Khosravi and his co-defendant Moghadam at Mr. Smiths restaurant located at M and 31st Streets, Georgetown, Washington, D.C. The government contends that at this meeting both defendants agreed to provide crack cocaine to the undercover police officer in the future. There has been no representation that the informant had any subsequent dealings with the defendants or the government after the initial September 21, 1989 meeting.
In determining whether to require disclosure of an informant the Court must balance the public interest in protecting the flow of information to the government by keeping secret the identity of its informers against the defendant's right to prepare a defense. Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957); United States v. Skeens, 145 U.S. App. D.C. 404, 449 F.2d 1066 (D.C.Cir. 1971). The necessity for disclosure depends upon 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." Id. This Circuit has noted that a heavy burden rests on the accused to establish that the identity of an informant is necessary to his defense. United States v. Skeens, 449 F.2d at 1070.
Defendant Khosravi, through counsel, made the following representations to the Court as to his basis for disclosure:
Counsel: And, finally, with respect to the informant request, we -- Mr. Khosravi, we would be relying on the Roviaro case, and we do it for this reason. Based on the discovery we have had thus far in the case, there would appear to have been Mr. Hassan -- I don't know his first name, don't know anything else about him -- who introduced the -- I believe, the co-defendant and my client to this undercover officer.
It is my understanding that my client was just brought along to go to Mr. Smith's, but not to be -- not to be part and parcel of an impending drug deal, and it's Mr. Hassan's testimony, which we believe is critical, because we believe that he can show that, in fact, it was the co-defendant that the DEA was investigating, not my client, Mr. Khosravi, and that, in fact, there for an innocent purpose at the initial meeting as opposed to being there for a criminal purpose.
And other than that, I would rely on the . . .
The Court: Well, elaborate just a bit for me, if this is going to be an issue. Are you suggesting that there was direct contact between your client and this ...