The opinion of the court was delivered by: DALZELL
I. Factual Background and Procedural Posture
This case arises out of an undercover Drug Enforcement Agency (D.E.A.) operation in which the confidential informant, posing as Juan Jose Lozano,
allegedly brokered the sale of 300 kilograms of cocaine from defendants Alfredo Fuentes and Edgar Quintero to an undercover D.E.A. agent, Ralph Padilla. The investigation involved the tape recording of many conversations between Messrs. Lozano, Fuentes and Quintero, during which Lozano arranged the sale of the cocaine. The operation culminated in a April 2, 1997 meeting at the Marriott Hotel in Miami, Florida where, on Fuentes' and Quintero's behalf, defendants Maria Sanchez, Jorge Ayala and Alvaro Cordova-Siliezar were to complete the sale to Padilla by exchanging the cocaine for the money.
Sanchez, Ayala and Cordova-Siliezar were arrested at the Miami Marriott on April 2, 1997 and are charged, along with Fuentes and Quintero, with conspiring to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846.
At trial, the Government intends to present forty-four tape recordings of conversations between and among Lozano and Fuentes and Quintero to establish the conspiracy. Some time ago, the Government asked that we allow Lozano to testify under his pseudonym and not disclose his true identity to defendants and their counsel. The defendants, in turn, moved for the disclosure of Lozano's true identity. For the reasons that follow, after two hearings on this matter we granted the defense motion on October 28, 1997 and ordered the Government to disclose Lozano's true identity. We also held that Lozano could testify at trial using a pseudonym, and strictly limited dissemination of his true identity.
The Government has elected not to disclose Lozano's true identity, and instead filed a motion for reconsideration asking us to vacate our October 28th Order. In the alternative, the Government contends that the appropriate remedy for non-disclosure is suppression of Lozano's testimony rather than dismissal of the action.
II. Disclosure of Lozano's True Identity, Use of Pseudonym and the Confrontation Clause
The Government contends that use of the pseudonym and preserving Lozano's anonymity is necessary to protect him and his family and to preserve the integrity of other ongoing drug trafficking investigations. Defendants argue that failing to provide Lozano's true identity and allowing him to testify under a pseudonym would violate their confrontation rights under the Sixth Amendment to the Constitution.
During this time, Lozano has worked as a confidential informant on many drug cases involving the Colombian drug trade. Although Lozano and his immediate family reside in the United States, he is said to be from a prominent family in Colombia and many of his relatives still reside in that country. During the course of his employment, the Government contends that Lozano has been shot three times and threatened on other occasions. In addition, few would quibble with the reality of the well-documented climate of fear and intimidation in Colombia that the powerful drug cartels have created.
We are persuaded, therefore, that disclosure of Lozano's identity would likely place him and his innocent family members in serious danger. We are also convinced, based upon the representations of the Government, that revealing Lozano's identity could compromise ongoing D.E.A. investigations. We are therefore resolved to do everything in our power to protect Lozano's identity consistent with defendants' Confrontation Clause rights.
The right of confrontation and cross-examination is an "essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Barber v. Page, 390 U.S. 719, 721 (1968) (quoting Pointer v. Texas, 380 U.S. 400, 405 (1965)); see also United States v. Riggi, 951 F.2d 1368, 1375 (3d Cir. 1991). Cross-examination is particularly vital because it "is the principal means by which the trustworthiness of a witness is tested." Riggi, 951 F.2d at 1376 (citing Davis v. Alaska, 415 U.S. 308, 316 (1974)). "So essential is cross- examination . . . that the absence of proper confrontation 'calls into question the ultimate integrity of the fact-finding process.'" Riggi, 951 F.2d at 1376 (quoting Ohio v. Roberts, 448 U.S. 56, 64 (1980)).
Defendants contend that allowing Lozano to testify under a pseudonym without disclosing his true name to them would violate their confrontation rights. In support of their argument defendants rely on Smith v. Illinois, 390 U.S. 129 (1968), where the Supreme Court held that allowing a witness to testify under a pseudonym without revealing his identity or place of ...