United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
matter is before the Court on the defendant's motion for
disclosure of a confidential informant's identity. (Doc.
110). The government has filed a response, (Doc. 119), and
the motion is ripe for resolution.
defendant offers three reasons to require disclosure: (1) his
suspicion that the informant was a participant in/witness to
the underlying crime; (2) his suspicion that the
informant's identity constitutes Brady material;
and (3) his belief that disclosure of the informant's
identity “will potentially play an important role in
uncovering admissible evidence, aiding witness preparation,
corroborating testimony, and assisting impeachment o[r]
rebuttal.” (Doc. 110 at 2-3).
defendant surmises that one Kelwinn Hill was the informant,
based on a government report that Hill took a picture of the
cocaine and on photographs attached to the report depicting
cocaine and an individual the defendant believes to be Hill.
(Doc. 110 at 2). Hill, however, was one of four subjects of
the investigation, was arrested at the same time and place as
the defendant and the other two defendants, (Doc. 32 at 9;
Doc. 57 at 16; Doc. 62 at 4; Doc. 71 at 4), and has pleaded
guilty to like charges. United States v. Hill, Crim.
Action No. 17-0049-KD. As the government points out, it is
exceedingly unlikely that an informant would rat himself out.
Moreover, the photograph in which Hill is depicted plainly is
not a selfie, since his hands are behind his back. (Doc. 110
at 6). Implausibility aside, the government denies that Hill
is the informant, and the defendant offers no reason to doubt
the defendant posits that “[t]he identity of the
informant is exculpatory, ” (Doc. 110 at 3), he offers
no explanation or support for this belief. The government is
well aware of its obligations under the Constitution and
Local Criminal Rule 16(b)(1)(B), and the Court cannot simply
assume the government is withholding information it knows it
is required to produce. “The burden to show a
Brady violation lies with the defendant, not the
government …, ” and that burden includes a
showing that “the government possessed favorable
evidence [sic] to the defendant.” United States v.
Stein, 846 F.3d 1135, 1145 (11th Cir. 2017)
(internal quotes omitted). The defendant has not attempted to
meet his burden.
Roviaro v. United States, 353 U.S. 53 (1957), as
construed by the Eleventh Circuit, the question whether the
government's limited privilege not to disclose the
identity of a confidential informant should be breached
focuses on: “(1) the extent of the informant's
participation in the criminal activity; (2) the directness of
the relationship of the defendant's asserted defense and
the probable testimony of the informant; and (3) the
government's interest in nondisclosure.” United
States v. Flores, 572 F.3d 1254, 1265 (11th
Cir. 2009) (internal quotes omitted). The defendant does not
address these factors, but his motion is governed by them
than his misguided suspicion that Hill was the informant, the
defendant offers no evidence or even allegation that the
informant participated in the criminal activity. “When
the confidential informant is not an active participant in
the criminal activity, but only a tipster, disclosure of his
identity is not required ….” United States
v. Gonzales, 606 F.2d 70, 75 (5th Cir. 1979).
From the original search warrant application forward, the
government has consistently portrayed the informant as only a
tipster, and the defendant offers nothing even remotely to
only defense the defendant identifies is that he had nothing
to do with the cocaine that forms the basis of this
prosecution. (Doc. 110 at 2). According to the pre-sentence
reports and factual resumés of the co-defendants, the
informant advised law enforcement that four individuals were
traveling in two specifically identified vehicles towards a
residence where they would break down the kilogram of cocaine
they were transporting. The defendant, his two co-defendants
and Hill were then observed in those vehicles and followed to
a residence, which they entered using a key. When law
enforcement executed a search warrant shortly thereafter, the
defendant and his two co-defendants were inside, with cocaine
on the kitchen table. (Doc. 32 at 8-10; Doc. 57 at 15-17;
Doc. 62 at 4; Doc. 71 at 4). The defendant asserts that he,
unlike his two co-defendants, was not under investigation
prior to his arrest. (Doc. 110 at 2).
the defendant thus has identified a defense, he has not
identified the probable testimony of the informant nor shown
any relation, direct or otherwise, between his defense and
that probable testimony. Since the informant alerted law
enforcement that four individuals (thus including the
defendant) would be involved in the cocaine operation, it is
difficult to imagine how the informant could provide
defendant offers is his conclusory assertion that the
disclosure of the informant's identity could
“potentially” assist in uncovering admissible
evidence, aiding witness preparation, corroborating testimony
or assisting in impeachment or rebuttal. A defendant must
“show” how disclosure would be helpful to his
defense, and “general assertion[s]” such as the
defendant makes amount to “nothing more than
speculation.” United States v. Hansen, 569
F.2d 406, 411 (5th Cir. 1978); see also
Gonzales, 606 F.2d at 75 (“[I]t has been
frequently held that mere conjecture of supposition about the
possible relevancy of the informant's testimony is
insufficient to warrant disclosure.”).
government identifies its interest in non-disclosure as
resting primarily on the danger disclosure would pose to the
informant. This is an appropriate government interest.
E.g., United States v. Tenorio-Angel, 756 F.2d 1505,
1509 (11th Cir. 1985) (“The government's
interest may be proven by showing that disclosure might
endanger the informant or other investigations.”). The
government indicates that the defendant was involved in a
larger organization, not all members of which have been
identified and who could retaliate against the informant.
(Doc. 119 at 5-6). The defendant affirmatively agrees,
stressing the statement of a co-defendant that he would do
his time without cooperating with the authorities because
otherwise these people would kill him. (Doc. 110 at 3).
reason set forth above, the defendant's motion ...