forecloses "countless avenues of in-court examination and out-of-court investigation." Smith, 390 U.S. at 131. These disclosures also do not alter the Government's sole control over the informational flow and the defendants' inability to test the veracity or completeness of the Government's disclosures. Furthermore, the defense also has no way of testing Lozano's reputation for truthfulness (or lack thereof) in his community. See Fed. R. Evid. 608. Also foreclosed is the defendants' ability to investigate possible prior bad acts here and in Colombia which would impugn his veracity. See id. In sum, even with these disclosures Lozano remains only who the Government says he is, and as for his life of at least thirty years before 1981, he remains largely a phantom.
In its motion for reconsideration, the Government, while conceding that there are no appellate cases directly supporting its position, refer us to some decisions that it believes support its view that allowing Lozano to testify using a pseudonym without disclosing his name complies with defendants' Confrontation Clause rights. The Government cites United States v. Femech, 943 F. Supp. 480 (E.D. Pa. 1996), and the cases cited therein. In Femech, the Government's key informant witness testified using a pseudonym to protect his identity for safety reasons. Judge Padova granted defendant's motion for a new trial because, as the Government conceded, "the record contained nothing to suggest that the witness had been threatened and [was] void of any indication that the witness was in danger." 943 F. Supp. at 488. Judge Padova stated, however, that a well-recognized exception to Smith exists where revealing a witnesses "name, address, or place of employment . . . would place the witness in danger." Id.
In support of this proposition, the Court in Femech cited eight cases that, as will be seen, provide little support for the broad proposition quoted. In seven of the cases the Court held that witnesses who testified must disclose their actual names but were not required to divulge their current addresses and/or places of employment in open court because disclosure might endanger their personal safety.
We agree that where a witness is threatened or is in any other way in danger, the Confrontation Clause does not require disclosure in open court of the witness' address or current place of employment. Withholding this information does not impede the defendant's out-of-court investigation in any material way or foreclose possible avenues of in-court examination. Withholding one's address and current place of employment, however, is simply not comparable to withholding one's true identity. As discussed above, concealing one's actual identity forecloses defendant from properly investigating the witness' background, reputation for truthfulness, and any prior bad acts that would impugn the witness' character, as well as prevents the testing of the completeness of the Government's disclosure. We therefore find that the seven cases cited in Femech are not instructive here.
We also do not find illuminating the eighth case cited in Femech, United States v. Ellis, 468 F.2d 638, 638 (9th Cir. 1972). In Ellis, the Ninth Circuit affirmed a conviction where the district court refused to allow defendant to elicit a witness' correct name, residence and occupation because of the potential harm to the witness. The Court held that because "of the marginal significance of the witness's testimony . . . no prejudice to the defendant can be shown." Id. Ellis is not helpful here because of the conceded materiality of Lozano's testimony. It was Lozano who brokered the sale of the cocaine and tape recorded the conversations. His testimony will authenticate most of the tapes, and it will also provide the basis for the conspiracy charge.
In addition, Lozano's testimony is particularly vital because of the proposed defense in this case. At least defendants Ayala and Sanchez, and possibly Cordova-Siliezar, intend to argue that they never intended to sell drugs but that the transaction was an attempt to steal $ 2.6 million from Padilla.
Lozano's testimony is critical because presumably he will provide testimony refuting that defense. The analysis in Ellis thus does not aid us. See United States v. Barnes, 486 F.2d 776, 779-81 (8th Cir. 1973) (holding that disclosure of informant's identity required where informant is a key witness whose testimony would be significant in determining guilt or innocence, even where the Government did not intend to call the informant as a witness); United States v. Barnett, 418 F.2d 309, 311-12 (6th Cir. 1969) (same); United States v. Roberts, 388 F.2d 646, 648-50 (2d Cir. 1968)(holding that where informant's testimony is essential to fair determination, disclosure of informant's identity is required even where the Government will not call informant as a witness).
The Government also argues in its motion for reconsideration that Smith does not apply here because defendants are making a pretrial request which it contends does not implicate the Sixth Amendment. We again disagree. The Government proposes to proceed to trial next week in a manner that we view as violative of defendants' Confrontation Clause rights. Nothing in the Sixth Amendment itself or any of the cases the Government cites leads us to believe that we may not take prophylactic action, but must instead we wait until defendants' constitutional rights have actually been violated before acting.
We do not believe, however, that the Confrontation Clause requires that Lozano reveal his true identity in open court. Revealing Lozano's true identity to the defendants permits them to investigate his background, and not permitting use of his true name during trial has in our view no constitutional significance. See supra note 10.
The Confrontation Clause also does not prevent us from strictly limiting the dissemination of Lozano's true identity. Defense counsel may, of course, reveal Lozano's identity to their clients. They may also reveal the identity to one investigator who will labor on behalf of all the defendants in investigating Lozano's background. The defendants and the investigator, however, are to reveal this information only as required by the investigation. We warned defendants and defense counsel that failure to comply with these limitations would result in a contempt of court charge.
III. Remedy for Failure to Comply
The Government has advised us in its motion that it will refuse to comply with our October 28, 1997 Order requiring it to reveal the true identity of Lozano. We are therefore constrained to order the suppression of his testimony. In view of the Government's refusal, Lozano may not testify for the Government at trial. United States v. Singer, 970 F.2d 1414, 1418 (5th Cir. 1992) (finding that trial court properly excluded evidence the prosecution improperly failed to disclose).
An Order accompanying this Memorandum follows.
AND NOW, this 31st day of October, 1997, upon consideration of the Government's motion for reconsideration of the Court's Order of October 28, 1997 requiring the Government to disclose the identity of its confidential informant (the "October 28 Order"), and for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that the Government's motion is GRANTED IN PART and DENIED IN PART in that:
1. The Government's request to vacate the October 28 Order is DENIED; and
2. The Government's request for the remedy of suppression of the testimony of "Juan Jose Lozano," rather than dismissal of the indictment, is GRANTED.
BY THE COURT:
Stewart Dalzell, J.