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United States v. Hernandez-Gonzalez

United States District Court, S.D. California

April 10, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JORGE ARMANDO HERNANDEZ-GONZALEZ, Defendant.

          ORDER

          WILLIAM Q. HAYES United States District Judge.

         The matter before the Court is the motion to reveal confidential source filed by Defendant Jorge Armando Hernandez-Gonzalez (ECF No. 39-4).

         BACKGROUND FACTS[1]

         In late May 2016, government agents began investigating the Defendant after an FBI undercover agent/officer (“UC”)[2] received a cellular phone number the government claimed belonged to the Defendant. The UC and a Confidential Source (“CS”) began calling the number to set up a drug buy. There was no recording of the initial call.

         On July 7, 2016, Defendant allegedly met with the CS at a location in which the Defendant allegedly showed the CS something that looked like methamphetamine.

         On July 26, 2016, Defendant allegedly met with the CS at a location in which Defendant allegedly showed the CS some white powder. The CS never bought, tried, sampled or preserved any of these alleged drugs.

         Subsequently, during recorded and unrecorded calls between Defendant and the UC, Defendant stated that he was ready with six kilograms of cocaine.

         On September 15, 2016, Defendant agreed to meet the UC at Plaza Bonita. During the recorded meeting, Defendant told the UC that the cocaine was in the area and could be delivered to a nearby stash house. Defendant and the UC walked to a black BMW that was parked nearby. The UC approached the passenger side of the black BMW. Defendant allegedly showed the UC a package containing a white substance inside in a dark backpack. The black BMW left the meeting. Defendant left the meeting in a blue Hyundai Sonata. On the way to the stash house, both the black BMW and the blue Hyundai Sonata began conducting counter-surveillance maneuvers. Officers lost sight of the two cars for a few minutes. Both cars were spotted and stopped. Both cars were searched. The dark backpack was not found. The agents arrested Defendant.

         On October 12, 2016, the grand jury returned an indictment charging that on September 15, 2016 Defendant conspired to distribute cocaine in violation of 21 U.S.C. § 841(a) and 846.

         CONTENTIONS OF THE PARTIES

         Defendant contends that the Court should order the disclosure of all potential impeachment information with respect to any informant or witness named in the discovery. Defendant asserts that the CS has information necessary for the defense to assess the strength and weaknesses of the contemplate entrapment and sentencing entrapment defenses. Defendant asserts that it is necessary for the court to order disclosure of the identity of the CS to obtain “evidence of whether government agents initially suggested the criminal activity, and the nature of the government's inducement or persuasion.” (ECF No. 46 at 7).

         The Government contends that the Defendant has failed to carry his burden of showing the need to reveal the identity of the CS. The Government asserts that the charge in this case is not based upon any prior transaction with the confidential source. The Government asserts that the interaction of Defendant with the CS took place months before the charged events. The Government contends that Defendant has not come forward with any facts which would indicate the disclosure of the identity of the confidential source is essential to a fair determination of his case.

         RULING OF THE COURT

         In Roviaro v. United States, 353 U.S. 53 (1957), the Supreme Court addressed law-enforcement objectives served by not disclosing the identity of a confidential source. The Court directed the court to “balanc[e] the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders non-disclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime ...


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