US v. Michael Distance

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00597-JFM-1 Copies to all parties and the district court/agency. [998482156] [09-5034]

US v. Michael Distance

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Date Filed: 12/09/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5034 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL DISTANCE, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:08-cr-00597-JFM-1) Submitted: November 17, 2010 Decided: December 9, 2010

Before DUNCAN, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Gerald C. Ruter, THE LAW OFFICES OF GERALD C. RUTER, P.C., Towson, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Traci L. Robinson, Special Assistant United States Attorney, Noah Grynberg, Third-Year Law Clerk, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: A federal jury convicted Michael Distance for

possession of a firearm after having previously been convicted of a crime punishable by a term exceeding one year of The

imprisonment, in violation of 18 U.S.C. § 922(g)(1) (2006).

district court sentenced Distance to 210 months of imprisonment and he now appeals. On appeal, Finding no error, we affirm. Distance argues that the district court

erred in denying his motion for disclosure of the identity of the confidential decision informant. to deny a This court for reviews a district of a

court's

motion for

disclosure of

confidential

informant's

identity

abuse

discretion. The from

United States v. D'Anjou, 16 F.3d 604, 609 (4th Cir. 1994). government has a qualified "privilege to withhold

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)

(citation omitted). must be disclosed

However, the "identity of such an informer whenever the informer's testimony may be

relevant and helpful to the accused's defense." In determining whether to require

Id. at 62. disclosure, a

district court must balance "the public interest in protecting the flow of information Id. against the individual's right to

prepare his defense."

In making this determination, the 2

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court should consider the circumstances of the case, including (1) the crime charged, (2) the defendant's possible defenses, (3) the possible significance of the informer's testimony, and (4) any other relevant factors. Id. The defendant bears the

burden of demonstrating that the Roviaro criteria apply in favor of disclosure. D'Anjou, 16 F.3d at 609. Moreover, "[t]he

defendant must come forward with something more than speculation as to the usefulness of such disclosure." Smith, 780 F.2d 1102, 1108 (4th Cir. 1985). order disclosure only after finding Id. that United States v. The court should the informant's

testimony would be "highly relevant."

Moreover, "[w]e have drawn a distinction in applying Roviaro between informants who are participants in a criminal transaction, and those who are mere tipsters." United States v.

Mabry, 953 F.2d 127, 131 (4th Cir. 1991) (internal quotation marks and citation omitted). disclosure is required where This court has determined that the informant is an active

participant in the crime, "particularly where [she] helps set up the criminal occurrence." 1, 5 (4th Cir. 1973). McLawhorn v. North Carolina, 484 F.2d

However, we have cautioned that "it would

be a mistake to get caught up in the semantics of whether an informant was in `tipster' or `participant' status." Mabry, 953

F.2d at 131 (citing United States v. Brinkman, 739 F.2d 977, 981 (4th Cir. 1984)). The key is balancing the competing interests 3

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in light of the circumstances of the case. the record in light of the relevant

Id.

Having reviewed authorities, we

legal

conclude that the district court did not abuse its discretion in denying Distance's request for disclosure of the confidential informant's identity. Accordingly, we affirm the judgment of the district court. We dispense with oral argument as the facts and legal

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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