The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge,
A federal grand jury indicted defendant Walter Martinez for conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base and five kilograms or more of cocaine, in violation of 21 U.S.C. § 846.
Before the Court are the following motions: defendant's Motion to Disclose Identities of Each Confidential Informant Regardless of Whether They Will Be Called at Trial, June 29, 2010, ECF No. 89; defendant's Motion to Dismiss the Indictment for Failure to Provide Notice and Appropriately Charge the Alleged Offense, Oct. 1, 2010, ECF No. 98; defendant's Motion to Dismiss the Indictment for Improper Venue, Oct. 1, 2010, ECF No. 99; and defendant's Motion for a Bill of Particulars, Oct. 1, 2010, ECF No. 100. Upon consideration of the government's omnibus opposition thereto, Dec. 13, 2010, ECF No. 109, defendant's omnibus reply brief, Dec. 20, 2010, ECF No. 111, applicable law, and the entire record in this case, the Court will deny the motions. The Court will discuss them in turn.
I.THE COURT WILL DENY WITHOUT PREJUDICE DEFENDANT'S MOTION TO DISCLOSE IDENTITIES OF EACH CONFIDENTIAL INFORMANT REGARDLESS OF WHETHER THEY WILL BE CALLED AT TRIAL .
The "informer's privilege" is "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." Roviaro v. United States, 353 U.S. 53, 59 (1957). This privilege must give way when disclosure of an informant's identity would be "relevant and helpful to the defense of an accused," or "essential to a fair determination of a cause." Id. at 60--61.
There is "no fixed rule with respect to disclosure"; rather, the Court must "balance[e] 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." Id. at 62. Roviaro only requires disclosure of an informant who was "an actual participant in or a witness to the offense charged." United States v. Warren, 42 F.3d 647, 654 (D.C. Cir. 1994) (citations and quotations omitted). "[D]efendants face a heavy burden to establish that the identity of an informant is necessary to the defense. Speculation as to the information the informant may provide is insufficient." Id. (citations and quotations omitted).
Under Brady, a defendant only has a right to receive from the government exculpatory information, not inculpatory information. "There is no general constitutional right to discovery in a criminal case." United States v. Celis, 608 F.3d 818, 831 (D.C. Cir. 2010) (quoting Weatherford v. Bursey, 429 U.S. 545, 559 (1977)). Defendants have no right to a witness list in advance of trial. Id.
First, neither defendant nor the government claims that disclosure of the confidential informants' names would be exculpatory information. The government assures the Court that it will continue to comply with its disclosure obligations under Brady, Giglio, and the Jencks Act. Gov't Opp'n 21, ECF No. 109.
Second, the Court must "balance[e] the public interest in protecting the flow of information against [defendant's] right to prepare his defense." Roviaro, 353 U.S. at 59. As to the public interest, the government states that disclosure of the confidential informants' names "would expose the informants to danger in the violent drug community," so their names are "being withheld for their safety." Gov't Opp'n 20, ECF No. 109. Safety of witnesses is, of course, an important public interest. As to defendant's right and ability to prepare his defense, defendant cites to the importance of these informants in the government's case, particularly in the context of the alleged controlled buys. Def.'s Reply 7--8, ECF No. 111. In all likelihood, these informants are "actual participant[s]" in the charged crimes, Warren, 42 F.3d at 654, and their knowledge about the charged crimes would be "relevant and helpful" to the defense, Roviaro, 353 U.S. at 60--61. Thus, at some point, the government will have to disclose their identities to the defense. But not yet. Under Roviaro, the defense must only have the opportunity to obtain their testimony in some manner during the trial. In that case, the informant did not testify at trial, and he was not available to the defense. In deciding that the government's refusal to disclose the informant's identity violated defendant's rights, the Supreme Court relied on the fact that defendant was neither able to cross-examine the informant nor call the informant as a witness. Here, that problem does not exist, because the informants will either testify at trial as part of the government's case-in-chief, or defendant will have an opportunity to call them in his own case as witnesses. The government assures the Court that "if any participating informant does not testify at trial, the government will make that informant available to the defendant at his request." Gov't Opp'n 20, ECF No. 109. This is sufficient under Roviaro.As a final matter, the government and defendant both acknowledge that defendant likely already knows the identities of most of the confidential informants.
Accordingly, because defendant does not at this stage have a right to know the identities of non-exculpatory confidential informants who may or may not testify against him at trial, the Court will deny this motion without prejudice.
II.THE COURT WILL DENY DEFENDANT'S MOTION TO DISMISS THE INDICTMENT FOR FAILURE TO PROVIDE NOTICE AND APPROPRIATELY CHARGE THE ALLEGED OFFENSE .
Defendant seeks to dismiss the indictment, because it fails to "allege with particularity the elements of the charged offense or provide necessary facts," and because it fails to "comply with the notice and grand jury protections ...