Opinion
No. 4:02-cr-039.
October 4, 2002
MEMORANDUM AND ORDER
Defendant Richard Lee Leslie ("Leslie") appeals from orders entered by the magistrate judge ruling on his pretrial motions seeking appointment of a voice identification expert and disclosure of the identity of the government's confidential informant. The appeal [Court File No. 31] is brought pursuant to FED. R. CRIM. P. 58(g)(2)(A) and E.D.TN. LR 72.4(b). The Court reviews the record de novo.
I. Defendant's Motions for Expert Witness
Leslie stands indicted on one count of violating 21 U.S.C. § 841(a)(1). The indictment charges that on or about November 13, 2001, Leslie knowingly distributed cocaine base (crack), a Schedule II controlled substance. Leslie states that based on discovery, the government alleges there were three separate drug transactions involving Leslie distributing crack to a government informant.
In its response [Court File No. 28, p. 4], the government says it has proof of the following facts. The government contends that on September 19, 2001, a confidential informant and an undercover police officer met with Leslie, and during this meeting the informant purchased crack from Leslie. On October 18, 2001, an informant and an undercover police officer met with Leslie, and the officer purchased crack from Leslie. On November 13, 2001, an informant and an undercover police officer both purchased crack from Leslie. The informant participated in, and is an eyewitness to, the criminal offense charged in the indictment. These three incidents were audio tape recorded by law enforcement officers.
Leslie asserts that he needs an expert to examine the audio tape recordings to have any hope of mounting a plausible defense. Based on discovery, Leslie concedes there is little question that an individual did sell crack to the informant which leaves open only one possible issue for the defense to pursue, i.e. the identity of the person who sold and distributed the crack. Defense counsel says that Leslie is unable to establish an alibi defense which leaves him virtually incapable of disputing the government's version of the events at trial. As the Court reads and understands the appeal [Court File No. 31], there is no affirmative statement by Leslie that he is not in fact the person who sold and distributed crack to the informant. Leslie's position is more subtle and tenuous. What Leslie indicates is that he searching for a plausible defense and he hopes to find one through an expert analysis of the audio tape recordings. In common parlance, Leslie is embarked on a fishing expedition.
The Court does not intend this to be any criticism of Leslie's attorney. On the contrary, Leslie's attorney is to be commended for zealously representing the defendant's interests, and for making every possible effort to investigate and prepare for trial. Nevertheless, because Leslie is "searching for a plausible defense" and does not actually deny he is the person who sold and distributed crack, this has an impact on the Court's consideration of his appeal.
In an effort to complete the pretrial investigation and develop some defense, Leslie moves for appointment of a private voice identification expert at government expense to examine the audio tape recordings. In the alternative, he moves for appointment of a government voice identification expert. [Court File Nos. 13, 19, 25]. The magistrate judge denied the motion for appointment of a private expert but granted the alternative motion for appointment of a government-employed expert. [Court File Nos. 23, 30].
After reviewing the record, the Court completely agrees with the magistrate judge's decision. Access to and use of a government expert will allow Leslie a fair, reasonable opportunity to conduct an adequate investigation, prepare for trial and present his defense. Leslie has not demonstrated that he will suffer any actual prejudice by the use of a government-employed voice identification expert rather than a privately retained expert. Moreover, the Court declines to authorize the expenditure of a relatively large sum of the taxpayers' money as requested by Leslie to employ a private expert as part of the defendant's fishing expedition in search of a speculative defense theory. This is especially so because Leslie does not affirmatively state that he is not the person who distributed crack as charged in the indictment.
Accordingly, to the extent that Leslie appeals from the magistrate judge's orders ruling on his motions for appointment of an expert, the appeal is DENIED and the decision of the magistrate judge is AFFIRMED. The Court does not reach the separate question whether an expert opinion concerning voice identification may be admissible into evidence at trial applying the standard for expert witnesses enunciated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
II. Defendant's Motion to Learn Identity of Confidential Informant
Leslie makes a motion to learn the identity of the government's confidential informant. [Court File No. 18]. The government opposes the motion. [Court File No. 28]. The motion has been denied by the magistrate judge. [Court File No. 29]. Relying on Roviaro v. United States, 353 U.S. 53 (1957), the magistrate judge reasons that the informant's privilege applies and the government is not required to disclose the identity of the confidential informant at the present time.
The government has a limited privilege to withhold the identity of a confidential informant from disclosure. Roviaro, 353 U.S. at 59-62; United States v. Bender, 5 F.3d 267, 269 (7th Cir. 1993); United States v. Jenkins, 4 F.3d 1338, 1341 (6th Cir. 1993); United States v. Moore, 954 F.2d 379, 381 (6th Cir. 1992); United States v. Straughter, 950 F.2d 1223, 1232 (6th Cir. 1991). "The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement." Roviaro, 353 U.S. at 59. The privilege recognizes the obligation of citizens to communicate their knowledge of criminal activity to law enforcement officers. By preserving the anonymity of informants, it encourages persons to perform this obligation and cooperate with the police. Id.; United States v. Sharp, 778 F.2d 1182, 1185 (6th Cir. 1985).
The Sixth Circuit recognizes that the privilege is especially important in cases involving the enforcement of controlled substance laws where there usually are no complaining witnesses. Jenkins, 4 F.3d at 1341; United States v. Bryant, 951 F.2d 350 (Table, text at 1991 WL 256555, *5 (6th Cir. Dec. 2, 1991)); United States v. Lloyd, 400 F.2d 414, 415 (6th Cir. 1968); United States v. Savage, 969 F. Supp. 450, 452 (E.D.Mich. 1997). In drug cases, the government often must rely on informers to investigate. Informers can be effective and will agree to cooperate with law enforcement officials when their identities are not disclosed.
The privilege is not absolute. The scope of the privilege is limited by its underlying purpose. One key limitation on the privilege arises from the fundamental requirement of fairness in criminal proceedings. Where disclosure of an informant's identity is relevant and helpful to the defense of an accused, or is essential to a fair adjudication of the case, the privilege must give way. Roviaro, 353 U.S. at 60-61; United States v. Johnson, 2002 WL 818229, *4 (6th Cir. April 29, 2002); Jenkins, 4 F.3d at 1341; Sharp, 778 F.2d at 1185; Moore, 954 F.2d at 381.
In deciding whether it is appropriate to order the government to disclose the identity of its confidential informant, the Court is required to balance the public interest in protecting the free flow of information about criminal activity against the defendant's right to adequately prepare his defense. This determination depends on the unique facts and circumstances in each case. The Court takes into consideration the crime charged, the possible defenses, the possible significance of the informant's testimony, and any other relevant factors. Roviaro, 353 U.S. at 62; Jenkins, 4 F.3d at 1341-42; Sharp, 778 F.2d at 1185-86; Moore, 954 F.2d at 381. Danger to the informant's life must be given significant weight in striking the proper balance under the Roviaro test. Straughter, 950 F.2d at 1232; United States v. Lanci, 669 F.2d 391, 393 (6th Cir. 1982).
The government states that if this case should go to trial, it will likely call the informant as a witness against Leslie. The government further says that if it decides to call the informant as a witness at trial, the government would likely disclose the informant's identity just prior to trial. The government is not willing to make a firm commitment at this time whether or not it will definitely call the informant to testify at trial. The Court observes that if the informant testifies at trial, then there probably is no need to order disclosure of the informant's identity prior to trial. See United States v. Perkins, 994 F.2d 1184, 1190-91 (6th Cir. 1993).
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to confront witnesses against him and to have compulsory process for witnesses. However, the Sixth Amendment does not require the government to call at trial every witness who may be competent to testify, including confidential informants. If the evidence on which a defendant is convicted is obtained personally by law enforcement officers who testify at trial, then the government is not obligated to also produce the confidential informant at trial as a witness. Johnson, 2002 WL 818299, at *4; Jenkins, 4 F.3d at 1341; Moore, 954 F.2d at 381; United States v. Craig, 477 F.2d 129 (6th Cir. 1973); see also, Aguwa v. United States, 2001 WL 1110108, *4 (6th Cir. Sept. 13, 2001).
Disclosure of a confidential informant's identity usually is not required when the informant did not actively participate in the criminal offense, and is merely a tipster or introducer. Johnson, 2002 WL 818299, at *4; United States v. Rodney, 999 F.2d 541 (Table, text at 1993 WL 280328, *5 (6th Cir. July 26, 1993)); Sharp, 778 F.2d at 1186 n. 2. In the instant case, the informant actively participated in and witnessed the commission of the drug-trafficking crime charged in the indictment. If an informant is an active participant in the events underlying the alleged crime, then the balancing of factors generally weigh in favor of the Court ordering disclosure of the informant's identity. Rodney, 1993 WL 280328, at *5; United States v. Smith, 941 F.2d 1210 (Table, text at 1991 WL 158699, *10 (6th Cir. Aug. 19, 1991)); United States v. Whitley, 734 F.2d 1129, 1138 (6th Cir. 1984); United States v. Harper, 609 F.2d 1198 (6th Cir. 1979); United States v. Barnett, 418 F.2d 309, 311-12 (6th Cir. 1969); Lloyd, 400 F.2d at 415-16; United States v. Ward, 722 F. Supp. 1523 (S.D.Ohio 1989).
Regardless of the circumstances, a defendant's mere invocation of his right to prepare a defense does not automatically outweigh the public interest in protecting the anonymity of the government's confidential informants. Moore, 954 F.2d at 381; Bryant, 1991 WL 256555, at **5-6. To overcome the privilege, the burden is on Leslie to specifically show how disclosure of the informant's identity is essential to a fair trial or would substantively assist his defense. Johnson, 2002 WL 818229, at *4; Moore, 954 F.2d at 381; United States v. Willis, 473 F.2d 450, 452 (6th Cir. 1973). The privilege of non-disclosure will not yield to permit a defendant to engage in a fishing expedition based upon the bare speculation that information provided by the informant may possibly prove useful. Mere conjecture or supposition about the possible relevancy of an informant's testimony is insufficient to warrant disclosure. Bryant, 1991 WL 256555, at **5-6; Sharp, 778 F.2d at 1187; United States v. Gonzales, 606 F.2d 70, 75 (5th Cir. 1979); United States v. Scott-Emuakpor, 2000 WL 288443, (W.D.Mich. Jan. 25, 2000).
Leslie has articulated only a potential, speculative defense strategy in support of his motion for disclosure of the informant's identity. Leslie does not contend that he is not the person who distributed the crack to the informant. This is analogous to the situation in Moore, 954 F.2d at 381, wherein the Sixth Circuit affirmed the district court's denial of disclosure of the confidential informant's identity when a drug-trafficking defendant advanced no more than a simple statement that the informant's testimony might assist the defense. The defense counsel's statement to the district judge "set out a strategy, not a need," for deciding whether to use the confidential informant as a witness after the informant was produced. Id.
The point is best illustrated in Bryant, 1991 WL 256555. In Bryant, a government informant purchased cocaine from the defendant, Alfred Bryant. The district court balanced the relevant factors as required by Roviaro and concluded that Mr. Bryant had not met his burden of demonstrating how the informant's identity was so essential to his defense that his right to prepare a defense outweighed the public interest in protecting the flow of information about criminal activity to law enforcement officers. The Sixth Circuit affirmed stating that although the informant actively participated in the cocaine transactions, defendant Bryant did not point to any specific evidence from the informant that could support his defense. Mr. Bryant did nothing more than indicate a desire to interview the informant to determine if the informant could be helpful to his defense. A defendant's mere speculation about the possible usefulness of an informant furnishes a court with nothing to balance under the Roviaro test against maintenance of the privilege. Bryant, 1991 WL 256555, at *5.
The Bryant Court goes on to say that although the informant's role as an active participant is a factor relevant to the Roviaro balancing test, it added no real weight to the balance because defendant Bryant failed to show how it was significant to his defense from an evidentiary standpoint. The Sixth Circuit in Bryant was unwilling and declined to rule that an informant's active participation in events underlying criminal offenses should be assigned the preclusive effect of a per se rule that always tips the Roviaro balancing test in favor of disclosure on the confidential informant's identity. Id. at *6.
To finally resolve this matter, the Court will hold an in camera hearing. District courts often utilize in camera hearings to determine whether government informants may have evidence that is relevant and helpful to the defense, or is essential to a fair determination of the case. United States v. Wilbert, 205 F.3d 1343 (Table, text at 2000 WL 84471, *3 (6th Cir. Jan. 12, 2000)); Bryant, 1991 WL 256555, at **7-8 (Jones, J., concurring); Straughter, 950 F.2d at 1232; Sharp, 778 F.2d at 1187; Lloyd, 400 F.2d at 417; Savage, 969 F. Supp. 450. As the Sixth Circuit explains in Straughter, 950 F.2d at 1232, in camera hearings are a proper method of conducting the necessary balancing of competing interests without unnecessarily disclosing the confidential informant's identity.
Accordingly, the Court RESERVES deciding this part of the defendant's appeal until the Court conducts an in camera hearing with the government's informant. The in camera hearing will be held outside the presence of the defendant, the defendant's counsel, and the government's counsel. Savage, 969 F. Supp. at 453-55.
On or before October 14, 2002, defendant Leslie and the United States Attorney shall each submit a set of interrogatories setting forth the specific questions that they want to have answered by the informant at the in camera hearing. On or before October 14, 2002, defendant Leslie shall submit to the Court current color photographs of himself clearly showing his face from the front, his left face profile, and his right face profile. In addition, Leslie shall also submit to the Court several of the same type of photographs taken of himself in or about November 2001. The Court intends to display these photographs to the informant at the in camera hearing to determine whether the informant can recognize and identify Leslie. On or before October 14, 2002, the government shall produce and file with the Court under seal the evidence it intends to offer at trial concerning the incidents of alleged crack distribution, along with any additional investigative reports, grand jury testimony and other proof concerning the facts and circumstances surrounding the alleged crack distribution. This information will enable the Court to understand the facts and facilitate the Court's ability to examine and question the informant at the in camera hearing. Id. After the in camera hearing, the Court will render its decision whether the informant's identity must be disclosed and also rule on this part of the defendant's appeal.