The law is clear that "the determination of whether to disclose the identity of a confidential police informant requires the District Court to balance 'the public interest in protecting the flow of information against the individual's right to prepare his defense.'" United States v. Warren, 42 F.3d 647, 1994 WL 691548 (D.C. Cir. 1994). However, "'Rovario does not require disclosure of an informant who was not an actual participant in or a witness to the offense charged.'" Id. (quoting United States v. Skeens, 145 U.S. App. D.C. 404, 449 F.2d 1066, 1071 (D.C. Cir. 1971)). "Accordingly, defendants face 'a heavy burden . . . to establish that the identity of an informant is necessary to the defense.'" Id. (quoting id. at 1070). Moreover, and critical to the Court's instant inquiry, the recent Warren Court further added that "speculation as to the information the informant may provide is insufficient." Id.
Applying these principles, the Court finds that the Defendant has not met his burden of overcoming "the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." Rovario v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). First, the Government represents that the informant was not a witness to the alleged criminal activity by the Defendant, and that it will not seek to introduce at trial any of the information that the informant provided to the police. Opposition, at 2, 3. Thus, "nothing in this record establishes that the informant was a participant, an eyewitness, or a person who was otherwise in a position to give direct testimony concerning the crime." Skeens, 449 F.2d at 1070. Further, "the government presented its case without mention of the informant, and his information was not used at trial." Id. As the evidence shows that "'the informer was an informer and nothing more,'" "the identity of the government informant in this case is not information whose disclosure Brady requires." United States v. Rowell, 1992 U.S. App. LEXIS 30555, 1992 WL 336989 at *2 (D.C. Cir. 1992) (quoting Miller v. United States, 273 F.2d 279, 281 (5th Cir. 1959), cert. denied, 362 U.S. 928, 4 L. Ed. 2d 747, 80 S. Ct. 756 (1960), and citing Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963)).
In addition, the Court of Appeals' findings in Skeens provide a factual predicate for the Court's determination in the instant case. In Skeens, the Defendant-Appellee argued "that given the intimate knowledge the informant seemed to have of the operation, it is likely that he knows a great deal more than has been revealed," to the extent that "the informant may have been the driver of a 'getaway car.'" Skeens, 449 F.2d at 1070. The defendant in Skeens contended on appeal that "he should have been permitted to question the informant in order 'to get to the core of the matter.'" Id. The Court of Appeals rejected his claim.
At bottom, the Defendant makes a very similar argument here, namely, that the informant's involvement may have been more than meets the eye, because if the informant had access to the backpack, he may have planted the gun in the backpack. Thus, like in Skeens, the Defendant seeks to examine the informant to "get to the core of the matter" and see if the informant planted the gun or otherwise possesses any exculpatory information. Again, however, "speculation [that the informer might possibly be of some assistance] is not sufficient to meet the heavy burden which rests on an accused to establish that the identity of the informant is necessary to his defense." Id. Rather,
if the informer's relation to the acts leading directly to or constituting the crime may be assumed from a fertile imagination of counsel, the Government in practically every case would have to prove affirmatively that the informant had not done any such likely acts. Having done that, all would be revealed and the informer privilege, deemed essential for the public interest, for all practical purposes would be no more.