The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Kaboni Savage's Motion to Compel the Production of Brady, Giglio and Napue Discovery (ECF No. 753). For the following reasons, Defendant's Motion will be granted in part and denied in part.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment (the "Indictment") charging Defendant Kaboni Savage with: conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1); twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15); conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9); retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16); and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Fourth Superseding Indictment, ECF No. 480.)*fn2 Savage was charged along with three co-defendants, Steven Northington, Robert Merritt, and his sister, Kidada Savage. Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011. On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Savage, Merritt and Northington. (ECF Nos. 196, 197, 198.) The Government does not seek the death penalty against Kidada Savage.
On October 9, 2004, six people, including four children, died as a result of arson at a home located at 3256 North Sixth Street, Philadelphia, Pennsylvania. (Def.'s Mot. 1, ECF No. 376.) The Fourth Superseding Indictment alleges that Defendant and Kidada Savage solicited and ordered Lewis and Merritt to set fire to the home of Eugene Coleman, a former associate of Defendant. (Fourth Superseding Indictment 21-23.) Savage believed that Coleman was cooperating with the Government and planned to testify against Savage in his 2005 drug conspiracy trial.*fn3 The firebombing took the lives of Coleman's mother, infant son, and four other relatives. The Government intends to show at trial that the firebombing was ordered by Defendant in order to intimidate Coleman and prevent him from testifying against him at the 2005 drug conspiracy trial.
On November 21, 2012, Defendant filed a Motion to Compel the Production of Brady, Giglio and Napue Discovery. (Def.'s Mot., ECF No. 753.)*fn4 *fn5 The Government filed a response on December 10, 2012. (Gov't's Resp., ECF No. 795.) We held hearings on December 17, 2012, and January 14, 2013 on Defendant's Motion. (Min. Entries, ECF Nos. 840, 905.)
Defendant requests disclosure of the identities of confidential informants who are referenced in fifteen separate Federal Bureau of Investigation ("FBI") 302 reports. (Def.'s Mot. Ex. D.) Defendant argues that the information these sources provide constitutes Brady, Giglio, and Napue evidence, and therefore the production of the names of these individuals is required. (Def.'s Mot. 2.) The Government maintains that disclosure of the confidential sources' identities is privileged under Roviaro v. United States, 353 U.S. 53, 62 (1957). (Gov't's Resp. 10.) At the January 14 hearing, the Government submitted the 302 Reports to the Court with the names of the confidential informants redacted. (Jan. 14, 2013 Hr'g Tr. 201-02 (on file with Court).)*fn6
The Supreme Court in Roviaro v. United States recognized the Government's privilege to withhold from disclosure the identity of confidential informants. 353 U.S. at 59. However, the Court held that this privilege was not without limitations. Id. at 59-60. "Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Id. at 60-61.
The first step in determining the necessity of disclosure is to "ascertain what need, if any, the defendant has alleged for disclosure." United States v. Jiles, 658 F.2d 194, 197 (3d Cir. 1981). A defendant has the burden to establish the specific need for disclosure. Id. "A defendant who merely hopes (without showing a likelihood) that disclosure will lead to evidence . . . has not shown that disclosure will be 'relevant and helpful to the defense . . . or is essential to a fair determination' of the case." United States v. Brown, 3 F.3d 673, 679 (3d Cir. 1993); United States v. Bazzano, 712 F.2d 826, 839 (3d Cir. 1983) ("[M]ere speculation as to the usefulness of the informant's testimony to the defendant is insufficient to justify disclosure of his identity.") (internal quotation marks omitted); United States v. Robles, 814 F. Supp. 1233, 1240 (E.D. Pa. 1993) ("The defendant must indicate some concrete circumstances that might justify overcoming both the public interest in encouraging the flow of information [from informants to law enforcement] and the informant's private interest in his [or her] own safety.") (internal quotation marks omitted).
Once the defendant provides a specific need for disclosure, the court must then "balance the public interest in protecting the flow of information against the individual's right to prepare his defense." Jiles, 658 F.2d at 196 (citing Roviaro, 353 U.S. at 62). As part of its inquiry, the court should consider "the crime charged, the possible defense, the possible significance of the informer's testimony, and other relevant factors." Id. The Third Circuit determined that disclosure of an informant's identity was required when: "(1) the possible testimony was highly relevant; (2) it might have disclosed an entrapment; (3) it might have thrown doubt upon the defendant's identity; and (4) the informer was the sole participant other than the accused, in the transaction charged." Id. at 198-99.
As part of this balancing test, the court should also consider the possible risk of harm to the informant if their identity is revealed. See id. at 198. Where disclosure will jeopardize the personal safety of the informant, and the informant's prospective testimony is not exculpatory, courts should ordinarily not order disclosure. See United States v. Edelin, 128 F. Supp. 2d 23, 33-34 (D.D.C. 2001) (citing United States v. Pelton, 578 F.2d 701, 797-08 (8th Cir. 1978)). However, the risk to the informant "cannot justify a deprivation of [a defendant's] right to a fair trial, [but] it does require close scrutiny of [a defendant's] need to have his counsel meet with the informant." Jiles, 658 F.2d at 198. "The Government's assertion of danger to the informant should 'not be disregarded lightly.'" United States v. Harrison, No. 04-768, 2005 WL 840377, at *5 (E.D. Pa. Apr. 12, 2005) (quoting United States v. Almodovar, No 96-71, 1996 WL 700267, at *7 (D.Del. Nov. 26, 1996.) Ultimately, the trial court is afforded substantial deference in assessing on a case-by-case basis the necessity of disclosure. Brown, 3 F.3d at 679.
It is important to note the relationship between the Government's privilege under Roviaro and the disclosure obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. In Brady, the Supreme Court held that the suppression of "evidence favorable to an accused upon request violates due process where evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. Similarly, the prosecution is required to turn over impeachment evidence to the defense - that is, evidence relating to a witnesses' credibility. United States v. Friedman, 658 F.3d 342, 357 (3d Cir. 2011) (citing United States v. Giglio, 405 U.S. 150, 154 (1972)). For purposes of Brady and Giglio, evidence is only material ...