USA v. Celestine et al

Filing 137

Order on Motion for Joinder, Order on Motion for Miscellaneous Relief

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA
Plaintiff,
vs.
NARON CELESTINE,
TILLMAN BRADLEY, III, and
STEVEN LAMONT RILEY,

3:09-CR-065-JWS-JDR
ORDER
REGARDING
MOTION TO REVEAL IDENTITY
OF INFORMANT and RELIEF
FROM PROTECTIVE ORDER
(Docket Nos. 42, 51)

Defendants.

Defendant Naron Celestine moves pursuant to Federal Criminal Rule
12(b)(1) and Rule 16 for an order directing the government to disclose the identity
of informants and provide relief from the Protective Order issued at Docket 15.
Docket 42. Co-defendant filed Steven Riley has filed a joinder to the motion at
Docket 51. The government filed a response at Docket 71. Upon due consideration,
the Motion is granted in part and denied part as set forth below.

Defendants seek the identity of four confidential informants mentioned
in the search warrant affidavit and the identity of an informant who purchased
cocaine during the investigation.

In its response the government agrees to

voluntarily disclose three days prior to trial the identity of the confidential informants
(sic) who it intends to call as witnesses at the trial, “along with corresponding
Brady/Giglio material.” The United States has agreed not to oppose the lifting of the
protective order at the same time.
Applicable Law
While the Due Process Clause does not necessarily require
identification of an undercover informer, a general standard for disclosure of an
informant's identity is set forth in Roviaro v. United States, 353 U.S. 53 (1957), which
states:
Where the disclosure of an informant's identity or the
contents of his communications is relevant and helpful to
the defense of an accused, or is essential to the fair
determination of a cause, the privilege must be waived. In
these situations, the trial court may require disclosure and,
if the government withholds the information, dismiss the
action.

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Id. at 60-61.

See also Weatherford v. Bursey, 429 U.S. 545 (1977).

Four

considerations are relevant with respect to disclosure. These are: (1) the crime
charged, (2) the possible defense, (3) the possible significance of the informant's
testimony, and (4) the other relevant factors.
The Ninth Circuit Court of Appeals recognizes that a "percipient
witness" must be disclosed. United States v. Cervantes, 542 F.2d 773, 775 (9th Cir.
1976). Disclosure is likewise mandated when an informant participated in events
that were critical to the prosecution's case. United States v. Hernandez, 608 F.2d
741, 744-45 (9th Cir. 1979). Where an informant's testimony is essential to a fair
determination, the government may be required to disclose his identity and address.
Roviaro, at 59. United States v. Roberts, 388 F.2d 646 (2nd Cir. 1968); see also
United States v. Anderson, 509 F.2d 724 (9th Cir. 1975).
The informant’s participation in the crime charged is a significant factor
in determining whether the identity of the confidential informant should be disclosed.
In Roviaro, disclosure was required because the informant was an essential
participant in the offenses by actually purchasing narcotics. Roviaro, 353 U.S. 6162. Therefore, in the instant case the identity of the informant identified as a person
who purchased cocaine during the investigation must be disclosed to the
defendants.

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The government claims there is no fixed rule requiring when informants
must be disclosed. In answering this question the court considers the particular
circumstances of the case including the crimes charged, the possible defenses and
the significance of the informant’s testimony as well as any other relevant factors.
See Roviaro at 353 U.S. at 62. The court also considers the degree of the
informant’s involvement in the criminal activity, the relationship between the
defendant’s asserted defense and the likely testimony of the informant, and the
government’s interest in non disclosure. See Generally United States v. Gonzalo
Beltran, 915 F.2d 487, 488-89 (9th Cir. 1990).
Celestine argues that the only witness who can attempt to tie him to the
drugs is the confidential informant. It is likely that such informant could be a key
witness for the government at trial. Trial by jury in this case is presently set for
February 16, 2010.
The government cites United States v. Foster, 815 F.2d 1200, 1202 (8th
Cir. 1987). In Foster the appellate court held that under the facts of that case the
trial court had not erred by not requiring the disclosure of the informant’s identity
prior to trial. Foster appealed his conviction and the court found that he had not
been harmed by the non disclosure of the informant’s identity prior to trial. Id. at
1203. The case is not helpful in deciding when the government should disclose the
identity of the informant who was a percipient witness.

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I conclude that Celestine has shown a need for knowing the identity of
this informant to prepare his defense. I reject the government’s argument that
because Celestine has denied that it is his voice on the recorded telephone
conversation and that the informant might not even be acquainted with Celestine,
Celestine has not established that he needs to know the identify of this particular
informant.1 In preparation for trial Celestine’s attorney needs to anticipate rebutting
or discrediting the government’s witnesses who testify against him. Under the facts
of this case the government should disclose the identify of this informant no later
than the close of business February 9, 2010. This will allow the defense three
business days prior to trial since February 15 is a holiday.
Informants to Search Warrant Application
Defendants Celestine and Riley seek discovery of other confidential
sources who provided information which formed the basis of the search warrant
application in the instant case. The government enjoys the privilege to withhold the
identity of persons who furnish information to officers charged with the enforcement
of criminal laws in some circumstances. Here, the source of the information which
caused the officer to seek a search warrant is unimportant to a defendant’s his
defense at trial. The legality of the officer’s actions has already been tested in the
defendant’s motion to suppress which has been denied. At trial witnesses will testify

1

Government’s Opposition, Docket 71, p.10.

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to what they saw and heard and what took place in their presence, not what
somebody else may have told them during the investigation.
In his motion Celestine acknowledges he knows nothing about the four
informants or the “quality” of their backgrounds, information or criminal history.”
Docket 42, p.5. He seeks the identities of these four confidential informants so that
he can investigate their backgrounds for possible reasons for bias. To the extent
that any or all of these four confidential informants will not be government witnesses
at trial then the defendant has made an insufficient showing of need for disclosure
of their identities. This determination, of course, does not override the duty of the
government to disclose exculpatory information pursuant to Brady v. Maryland, 373
U.S. 83 (1963) and its progeny. Brady still applies to these informants and potential
witnesses.
The government has agreed to disclose three days before trial the
identity of the confidential informants who it intends to call as witnesses (sic) at the
trial. The pleadings do not disclose whether any of these four informants have
additional evidence to provide beyond that mentioned in the search warrant affidavit.
Since the government agrees to disclose three days prior to trial the identity of any
informant who the government intends to call as a witness at trial the court construes
the three days prior to trial to exclude weekends and holidays and orders such
disclosure by the close of business February 9, 2010.

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This will provide the

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defendants with three business days to use this information in preparation of their
defense. The disclosure of such witness’s statements will continue to be governed
by the Jencks Act, 18 U.S.C. § 3500(a).
As to any of the four confidential informants who are not prospective
government witnesses and do not have evidence to disclose known to the
government to be exculpatory, I determine that the defendants have not met their
burden of showing the necessity for disclosure of their identity(s) prior to trial. A
mere request for disclosure of an informant’s identity or mere suspicion that the
informant may be helpful to the defense is insufficient to overcome the public’s
interest in protecting the informant’s identity. See United States v. Marshall, 526
F.2d 1349, 1359 (9th Cir. 1975). See also United States v. Rinn, 586 F.2d 113, 119
(9th Cir. 1978) (Disclosure of information that reflects on credibility of witnesses is not
related to the preparation of a defense and thus not required for pretrial disclosure).
“It is well settled that a trial court need not require agents to disclose the identity of
a reliable informant where the sole ground for seeking that information is to establish
the existence of probable cause for arrest.” United States v. Mehciz, 437 F.2d 145,
149 (9th Cir.), cert denied 402 U.S. 974 (1971); United States v. Fixen, 780 F.2d
1434, 1439 (9th Cir. 1986).
//
//

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Protective Order
Defendants request this court to order that the protective order entered
at Docket 16 be lifted. The United States offers a partial opposition, the government
agrees not to oppose the request to lift the protective order three days before trial.
The defendants seek relief from the protective order to allow the
defense team to play the audio tape to defendants’ potential witnesses so they can
be prepared to contradict the government’s claim that Celestine’s voice is not on the
tape. The protective order serves to limit or prevent undue influence brought against
government witnesses or sources. The defendants’ request for early disclosure of
the audio tape under seal is hereby denied with the following exception: Should the
government have exculpatory information indicating that an informant or other
person has exculpatory information regarding whether the recorded conversations
include the voice of Celestine then such information should be provided to the
defense forthwith. Otherwise, the request to lift the seal of the protective order prior
to the time agreed upon by the government is hereby denied.
DATED this 4th day of February, 2010, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

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