United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE
defendant filed a motion for disclosure of a confidential
informant's identity. (Doc. 110). The Court allowed the
government to file a response, (Doc. 118), which it did.
(Doc. 119). The Court did not order or authorize a reply
brief, and once the motion became ripe, the Court entered an
order denying the defendant's motion. (Doc. 120). Shortly
thereafter, the defendant filed what he termed a reply. (Doc.
121). Because it was filed without direction or
authorization, and because it was filed after the Court
ruled, the Court construes the filing as a motion to
noted in the Court's previous order, the 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). His motion to reconsider does not alter
the Court's assessment of these reasons.
previously noted, (Doc. 119 at 2), under 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 first factor, the motion to reconsider clarifies that the
defendant does not assert that Kelwinn Hill was the informant
(as his motion for disclosure obscurely suggested) but rather
that the informant was present with Hill and took a photo of
him and the cocaine made the subject of this prosecution. The
problem remains that the defendant does not assert the
informant was a participant in the criminal activity. On the
contrary, he insists that Hill merely knew the informant and
that Hill considered the informant to be an outsider to the
criminal activity. (Doc. 121 at 2). As the Court previously
noted, “[w]hen 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). The government has
consistently portrayed the informant as a mere tipster, and
the defendant continues to make no contrary assertion.
the second factor, the defendant states that he desires the
informant's testimony in order to impeach Hill should
Hill repeat on the stand his post-arrest statement that he
only dealt with marijuana, not cocaine. (Doc. 121 at 2).
Given that Hill has pleaded guilty to conspiracy to possess
with intent to distribute the two kilograms of cocaine
involved in this prosecution,  the chance that he would swear
under oath that he has dealt only with marijuana would appear
to approach the infinitesimal. Nor has the defendant
attempted to show how impeaching Hill on whether he has dealt
only with marijuana could directly relate to his asserted
defense, (Doc. 110 at 2), that he had nothing to do with the
cocaine that he and his co-defendants, under observation by
law enforcement, transported to the house where it, and they,
defendant also states without elaboration that he needs to
interview the informant in order to obtain a fair trial.
(Doc. 121 at 2). As the Court previously pointed out, (Doc.
120 at 3), 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
the third factor, the 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
scoffs that it is “inconceivable” the informant
could be subject to retaliation, given that Hill has
cooperated with law enforcement for over a year, apparently
without repercussion. (Doc. 121 at 3). In his motion for
disclosure, however, the defendant stressed that Hill was so
afraid of retaliation that he refused to cooperate and told
law enforcement that “he would take his time in prison
because these people will kill him.” (Doc. 110 at 3).
Moreover, Hill is in custody, while the informant presumably
is on his or her own in the free world.
to satisfy the test for obtaining disclosure of the
informant's identity, the defendant suggests he should be
excused from meeting the test because he can acquire the same
information by other means at trial. Hill, he says, indicated
to law enforcement that the informant had to be one of three
people. The government intends to call Hill at trial, and the
defendant intends to cross-examine him about the identity of
the informant. Because the defendant anticipates discovering
the informant's identity in this manner, he argues the
government should disclose his or her identity now. (Doc. 121
at 2). Assuming without deciding that the government could
not successfully object to such an inquiry at trial, the
defendant identifies no authority or legal principle that
would permit him to compel disclosure by the government
without satisfying the established test for overcoming the
government's privilege against such disclosure.
reason set forth above, the defendant's deemed motion to
reconsider is denied.
United States v. Kelwinn Tyrone
Hill, Criminal Action No. 17-0049-KD, Docs. ...