United States District Court, N.D. California, San Francisco Division
[ECF No. 185]
LAUREL BEELER, Magistrate Judge.
The district judge ordered certain discovery on February 18, 2015, and thereafter referred discovery to the undersigned to review whether the government complied with her order and whether the FBI manual on informants should be disclosed to counsel for defendant Jose Soltero. (2/18/15 Discovery Order, ECF No. 170; 2/25/15 Referral, ECF No. 185; 2/25/15 Transcript ("RT"), ECF No. 194; Referral, ECF Nos. 185, 192.) The parties submitted briefs and supporting declarations, and the government submitted for in camera review (1) the FBI manual and (2) unredacted copies of materials that it disclosed to Mr. Soltero in redacted form. (ECF Nos. 195-198, 202, 204-205.) The court held a hearing on March 19, 2015, and ordered the discovery memorialized in this order. ( See Minute Order, ECF No. 206.)
The indictment charges extortion under the Hobbs Act and impersonating a federal police officer arising out of what the government alleges is Mr. Soltero's shakedown of growers of marijuana. The government says that the growers paid Mr. Soltero money in return for his promise to prevent the government from (1) investigating grow sites ("rent" payments) and (2) raiding grow sites and arresting growers ("help" payments), all from roughly October 2009 until September 2011. ( See Indictment, ECF No. 1; Government's Trial Memorandum, ECF No. 115.) Mr. Soltero was a confidential informant ("CI") at various times for the DEA, the FBI, and a particular San Francisco police officer. According to the government, eventually the growers complained to the FBI. The investigation and indictment of Mr. Soltero followed. The record reveals three growers, two who are testifying witnesses (Kevin Lieu and Eric Tran) and one who is no longer testifying (Sam Mac). All three were informants, at least during the investigation of Mr. Soltero.
When agents arrested him for the extortion scheme, Mr. Soltero admitted his conduct but said that he was not the instigator. Instead, he said, he acted the direction of the San Francisco police officer who handled him. ( See 2/25/15 RT, ECF No. 194.) The following account is in the transcript of a discovery hearing before the district judge. ( See id. ) According to Mr. Soltero, his handling officer got most of the money. Based on this accusation, the agents arranged for Mr. Soltero to call the officer, saying something to the effect of, "I have the money." ( See id. ) The officer responded with something along the lines of, "I don't know what you are talking about. Where are you?" The record reveals that the officer knew Mr. Soltero was in jail because Mr. Soltero's wife called the officer and told him. A day or so later, the officer called the federal agents and said something to the effect of, "I'm concerned I'm being set up." The FBI investigated the officer, including searching his emails, getting a credit report, and reviewing his financial information, but the government never charged him because (they say) nothing corroborated the allegation that he was on the take through the delivery device of this (or any) scheme. The officer's attorney told the government that the officer will not speak with the government now without a grant of immunity. The government has no plans to immunize him. ( See id. ) At the March 19, 2015, hearing, the government said that the officer remains on active duty with the San Francisco police department ("SFPD").
The discovery issues that were referred to the undersigned for a "compliance" review all involve this SFPD officer, his conduct, and the appropriateness (for lack of a better word) about how the law enforcement agencies handled Mr. Soltero and whether they followed procedures for handling confidential informants. The other issue is whether, following the spirit of the district judge's prior discovery orders, the government must disclose the FBI's manual on handling confidential informants. The following chart summarizes the district judge's discovery rulings that are implicated by the referral and any resolutions that preceded the undersigned's compliance review.
The following are the materials that the government submitted for in camera review: (1) the FBI Confidential Human Source Guide; (2) CI file for Eric Tran with redacted portions highlighted; (3) CI file for Kevin Lieu with redacted portions highlighted; (4) FBI 302 for interview with FBI SA Karin McInturff with redacted portions highlighted; and (5) FBI 302 for interview with Carlos Alfaro with redacted portions highlighted. (A 302 is the number that the FBI uses for reports and is used here as a shorthand for "report.")
The following are the undersigned's rulings made at the ...