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United States v. Becerra

United States District Court, Ninth Circuit

October 16, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
JUAN JOSE BECERRA, Defendant.

ORDER GRANTING MOTION TO COMPEL INFORMANT DISCOVERY [53]

DOLLY M. GEE, District Judge.

On January 9, 2013, Defendant Juan Jose Becerra, who is charged with distribution of approximately 26.9 grams of methamphetamine, filed a motion seeking, inter alia, disclosure of the identity of the Government's confidential informant ("CI"). [Doc. # 21.] This matter came before the Court for hearing on April 10, 2013, at which time the Court denied Defendant's request for disclosure of the identity of the CI but granted Defendant's request for an in camera hearing to allow defense counsel to question the CI regarding Defendant's entrapment defense. [Doc. # 35.]

On May 1, 2013, the in camera hearing was scheduled for May 23, 2013 and the Court advised the parties that at the conclusion of the in camera hearing and upon the filing of a defense motion, "if the CI has not voluntarily disclosed his identity and the Court determines that defendant has demonstrated a need for the disclosure of the CI's identity, the Court will issue an order that the government must disclose the CI's identity to defense counsel before trial." [Doc. # 38.] On September 18, 2013, Defendant filed his renewed motion to compel informant discovery seeking the true identity and contact information of the CI. The Court conducted a hearing on the renewed motion on October 16, 2013. [Doc. # 53.]

Arguing that this motion directly implicates Defendant's rights to confront and cross-examine witnesses and poses a danger to the confidentiality of Defendant's privileged information as well as his trial strategy, Defendant supported his motion with an in camera filing. [Doc. # 57.] On September 25, 2013, the Government filed its opposition. [Doc. # 58.] On October 2, 2013, Defendant filed his reply under seal.[1] [Doc. # 65.] Concurrently herewith, the Court has filed, in camera, its findings from the May 23, 2013 in camera hearing. Having considered the record herein, the Court finds that disclosure of the CI's identity is warranted for the reasons set forth below.

I.

LEGAL STANDARD

In Sorrentino v. United States, 163 F.2d 627, 628-29 (9th Cir. 1947), the Ninth Circuit made a distinction between an informer and a participant:

If the person whom [government agent] Grady called an informer had been an informer and nothing more, appellant would not have been entitled to have his identity disclosed, but the person whom Grady called an informer was something more. He was the person to whom appellant was said to have sold and dispensed the opium described in the indictment. Information as to this person's identity was therefore material to appellant's defense, and appellant was entitled to a disclosure thereof.[2]

In Roviaro v. United States, 353 U.S. 53 (1957), the United States Supreme Court stated the standard as follows:

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.

353 U.S. at 62.

II.

DISCUSSION

In Roviaro, the defendant was charged and convicted on two counts: (1) the sale of heroin to an informer ("Doe") and (2) the illegal transportation of the heroin. The Government did not defend its nondisclosure of Doe's identity with respect to the sale count, but argued that nondisclosure on the transportation count could be upheld because Doe's identity had no real bearing on that charge. Noting that the informer was the sole participant, other than the defendant, in the transaction charged, the Supreme Court held that it was error to allow the Government to withhold Doe's identity with respect to the transportation count. 353 U.S. at 64-65. In coming to this conclusion, it is notable ...


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