USA v. Javier Vences, Sr.

Filing 511108099

Case: 09-50306

Document: 00511108099

Page: 1

Date Filed: 05/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50306 S u m m a r y Calendar May 12, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. J A V IE R VENCES, SR., D e fe n d a n t-A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 6:08-CR-196-1

B e fo r e GARZA, CLEMENT, and OWEN, Circuit Judges. P E R CURIAM:* A jury convicted Javier Vences, Sr., of aiding and abetting in the p o s s e s sio n with intent to distribute at least 100 kilograms of marijuana, c o n s p ir a cy to possess with intent to distribute at least 100 kilograms of m a r iju a n a , and possession of a firearm by a convicted felon, in violation of 21 U .S .C . §§ 841(a)(1), (b)(1)(B)(vii), & 846, and 18 U.S.C. §§ 2, 922(g)(1), & 924(a)(2). The district court sentenced Vences to concurrent terms of 87 m o n th s of imprisonment on each of the three counts of conviction. On appeal,
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 09-50306

Document: 00511108099 Page: 2 No. 09-50306

Date Filed: 05/12/2010

V e n c e s argues that the trial court abused its discretion by denying his motion t o disclose the identity of the confidential informant. T h e district court held an in camera hearing regarding whether the in f o r m a n t 's identity should be revealed, a procedure that this court has p r e v io u s ly approved. See United States v. Freund, 525 F.2d 873, 877-78 (5th Cir. 1 9 7 6 ). This court uses a three-part test to determine whether the identity of an in fo r m a n t should be revealed: (1) the level of the informant's activity; (2) the h e lp fu ln e s s of the disclosure to the asserted defense; and (3) the Government's in te r e s t in nondisclosure. United States v. Ibarra, 493 F.3d 526, 531 (5th Cir. 2 0 0 7 ) . After reviewing the transcript of the in camera hearing, record evidence r e le v a n t to the disposition of this appeal, and the arguments of the parties, this c o u r t finds that the interests balance toward nondisclosure. Although the

in fo r m a n t's participation supports disclosure, Vences did not show that the in fo r m a n t 's testimony would significantly aid in establishing an asserted d e f e n s e , which cuts against disclosure. Moreover, the Government's interest c le a r ly supports nondisclosure. Where, as here, the relative interests balance t o w a r d nondisclosure, and where the district court held an in camera hearing at w h i c h evidence was presented that enabled the district court to reach its d e c is io n , the district court did not abuse its discretion in withholding the id e n tit y of the informant. See United States v. De Los Santos, 810 F.2d 1326, 1 3 3 3 (5th Cir. 1987). T h e judgment of the district court is therefore AFFIRMED.

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