Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Bangaroo

United States District Court, M.D. Pennsylvania

August 15, 2017

UNITED STATES OF AMERICA,
v.
AARON BANGAROO, Defendant.

          MEMORANDUM OPINION

          Robert D. Mariani United States District Judge.

         I. Introduction and Procedural History

         Presently before the Court are the Pre-Trial Motions of the Defendant, Aaron Bangaroo. (Doc. 23).

         On August 18, 2015, a federal grand jury returned an indictment charging Bangaroo with the following offenses:

• Distribution and Possession with Intent to Distribute Heroin on or about June 26, 2015, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count 1);
• Distribution and Possession with Intent to Distribute Heroin on or about June 30, 2015, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count 2);
• Possession with Intent to Distribute Heroin on or about July 1, 2015, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count 3);
• Possession with Intent to Distribute Cocaine on or about July 1, 2015, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count 4);
• Convicted Felon in Possession of Firearms on or about July 1, 2015, in violation of 18 U.S.C. § 922 (g)(1) (Count 5);
• Possession of Firearms in Furtherance of a Drug Trafficking Crime on or about July 1, 2015, in violation of 18 U.S.C. § 924(c) (Count 6).

         (Doc. 1).

         On September 3, 2015, Bangaroo appeared before Magistrate Judge Joseph Saporito wherein he entered a plea of not guilty to the indictment and was ordered detained. (Docs. 13, 14). Defendant thereafter filed "Pre-Trial Motions" (Doc. 23), with an accompanying brief (Doc. 23-1), setting forth, inter alia, thirteen motions titled as follows:

1. Motion that the Prosecution be Required to Reveal Material that Would in its Nature be Exculpatory of Guilt and/or Mitigating of Punishment and that the Duty to Reveal Such Material be a Continuing one Throughout the Case.
2. Motion to Compel the Prosecution to Take Steps to Learn of any Evidence Favorable to the Defendant that is Known to Other Persons Acting for the Government Team, e.g. the Police.
3. Motion to Require the Government to Reveal any Agreement Between any Agent or Agency of the Government and any Government Witness.
4. Motion to Disclose the Identity of the Government's Informants.
5. Motion to Require the Government to Produce the Government's Informant for Trial.
6. Motion to Disclose the Present Whereabouts of the Government's Informants for Purposes of a Defense Subpoena.
7. Due Process Motion for Investigative Funds to Assist the Indigent Defendant and Defense Counsel in Preparing and Presenting the Defense.
8. Motion to Suppress Illegally Obtained Statement/Confession and for Hearing.
9. Motion to Suppress Confession of Co-Defendant.
10. Motion to Suppress Evidence Intentionally Seized Pursuant to a Search Warrant Issued Based upon an Affidavit which on its Face Failed to Establish Probable Cause and for Hearing.
11. Motion to Compel the Government to Produce Statements of Government Witnesses for Discovery and Inspection Prior to Defense Cross-Examination of Each Such Witness.
12. Motion to Prevent Sentence Based in Whole or Part on Evidence of any Conviction that is not Alleged in the Charging Instrument and Proved Beyond a Reasonable Doubt.
13. Motion for Leave to File Additional Motions.

(Doc. 23). The United States timely filed a brief in opposition to Defendant's motions (Doc. 24).

         In 2016, the Court held several conference calls with counsel for the parties. As a result of a conference call held on September 28, 2016, the Court issued an Order providing Defendant an additional 30 days to engage in further plea discussions with the United States and obtain advice and counsel as to the effect of the pending criminal proceedings on Bangaroo's ability to remain in the United States. The Court further ordered that, following the expiration of the 30 day extension, should counsel notify the Court that resolution of the defendant's outstanding pre-trial motions was necessary, counsel should be prepared to set forth their respective positions as to whether an evidentiary hearing and/or oral argument should be held with respect to one or more of the motions. (Doc. 30). On October 31, 2016, the Court held another conference call wherein Defendant's counsel informed the Court that no resolution had been reached and therefore requested an evidentiary hearing be held on his first motion, at which time he would call one witness in support of that motion, and that oral argument be held on the remaining motions. The Court issued an Order scheduling an evidentiary hearing and oral argument in this action. (Doc. 34).

         On December 2, 2016, the Court held an evidentiary hearing on Defendant's "Motion that the Prosecution be Required to Reveal Material that would in its Nature be Exculpatory of Guilt and/or Mitigating of Punishment and that the Duty to Reveal such Material be a Continuing one Throughout the Case" and oral argument on Defendant's additional 12 motions. On this day, despite Defendant's request for an evidentiary hearing on his first motion, he informed the Court that he did not "think we are going to have an evidentiary hearing because [he did not] have a witness to provide testimony" and therefore "this will be strictly argument on all 13 motions." The parties thereafter set forth their respective positions on the pending motions.

         II. Analysis

         A. Motions IV, V, and VI - "Motion to Disclose the Identity of the Government's Informants"; "Motion to Require the Government to Produce the Government's Informant for Trial"; "Motion to Disclose the Present Whereabouts of the Government's Informants for Purposes of a Defense Subpoena"

         The Court will begin its analysis with Motions IV, V, and VI as the analysis of these motions is applicable to this Court's examination of several of Defendant's other motions.

         In motions numbered IV, V, and VI, the Defendant asks the Court to order the Government to disclose the identity of the Government's informants (IV); to require the Government to produce the Government's informant for trial (V); and to disclose the present whereabouts of the Government's informants for purposes of a defense subpoena (VI).

         In support of these motions, Defendant argues that there is a "genuine dispute as to whether 'Ace' is the same person as the Defendant herein, Aaron Bangaroo." (Doc. 23-1, at 5). Defendant further argues that the Government's confidential sources and confidential informant would testify that "Ace" is not the Defendant "or that they mistakenly have named him as such" and thus the "presence of the informant/sources is crucial to the Defendant's defense." (Id.). Defendant provides no further argument to support his assertions or any case law demonstrating an entitlement to some, or all, of this information.

         In response to these motions, the Government cites to Roviaro v. United States, 353 U.S. 53, 59 (1957) and McCray v. State of Illinois, 386 U.S. 300, 309 (1967), for the proposition that it is well-established that the Government is permitted, absent exigent circumstances, to withhold the identity of informants. (Doc. 24, at 13).

         In Roviaro, the Supreme Court found that "[w]here 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." 353 U.S. at 60-61. Nonetheless, "no fixed rule with respect to disclosure [of the identity of an informant] is justifiable." Instead,

[t]he problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.

Id. at 62.

         A decade later, in McCray, the Supreme Court again addressed the privilege against disclosure of the identity of persons supplying the Government with information concerning the commission of crimes and set forth the reason for this privilege:

Communications of this kind ought to receive encouragement. They are discouraged if the informer's identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an assurance of anonymity - to protect himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest in nondisclosure of the identity of informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities. Revelation of the dual role played by such persons ends their usefulness to the government and discourages others from entering into a like relationship.
That the government has this privilege is well established and its soundness cannot be questioned.

McCray, 386 U.S. at 308 (quoting 8 Wigmore, Evidence § 2374 (McNaughton rev. 1961)).

         Prior to engaging in the Rovario balancing test, the defendant has the burden of setting forth and establishing a specific need for disclosure of the identity of the confidential informant. See United States v. Jiles, 658 F.2d 194, 197-198 (3d Cir. 1981) (stating that "the first step in determining whether the identity of an informant must be disclosed is to ascertain what need, if any, the defendant has alleged for disclosure", and that this burden to show the need for disclosure is on the defendant, and the "second part of the 'Roviaro test' requires a balancing of the [Defendant's] interest in disclosure against the Government's interest in maintaining the confidentiality of its informant."). In meeting its burden, the defendant may not merely rely on speculation or vague assertions. See U.S. v. Bazzano, 712 F.2d 826, 839 (3d Cir. 1983) ("[Defendant's] argument, as to why the identity of the informant here would be useful, is vague. '[M]ere speculation as to the usefulness of the informant's testimony to the defendant is insufficient to justify disclosure of his identity.' So far as appears, the informant's role in this case was nothing more than that of allegedly providing the police with probable cause for conducting their search . . . . The evidence of [Defendant's] guilt consisted primarily of the physical evidence seized during the search. Where an informant's role was in validating a search, disclosure of his identity is not required. [Defendant] has failed to present a convincing argument that the informant played any more important role in the Government's case or in his defense." (internal citations omitted)); Jiles, 658 F.2d at 197 ("The mere speculation that an eyewitness may have some evidence helpful to defendant's case is not sufficient to show the specific need required by Roviaro."); United States v. Brenneman, 455 F.2d 809, 811 (3d Cir. 1972) (Finding unpersuasive Defendant's "speculation that testimony or information from the informant might have been used to impeach or cross-examine [a witness] and 'might even have led to the [defendant's] being able to raise the issue of entrapment'".).

         In this case, the Government contends that Bangaroo's reason for seeking disclosure of the confidential sources/informants is "speculative at best." (Doc. 24, at 15). While the Defendant disputes that he ever utilized the street name or nickname of "Ace", the Government points to other information in the Affidavit of Probable Cause which presents facts which allowed Luzerne County Court of Common Pleas Judge Tina Gartley to find the informants credible and to issue a search warrant.

         Specifically, a review of the Affidavit of Probable Cause (Doc. 24-1) issued in this matter sets forth a number of factual assertions which form the basis for the issuance of a search warrant. The affiants of the Affidavit of Probable Cause were Detectives Edward Palka and Richard Kotchik, both assigned to the Kingston Police Narcotics Unit at the time of the events at issue.

         The detectives stated that they received information from two confidential sources (hereinafter "CS#1" and "CS#2").

         According to the affiants, CS#1 provided the following information, as set forth in the second paragraph of the Affidavit:

• CS#1 could purchase heroin from a black male utilizing the alias "Ace";
• "Ace" lived on S. Gates Avenue in Kingston and drove a blue Chevy Trail Blazer;
• "Ace" deals heroin and crack cocaine and always carries a gun with him;
• "Ace" carries a gun because he was recently involved in a shootout in Wilkes-Barre;
• "Ace" recently moved to S. Gates Avenue with his girlfriend, Michelle, because he had been shot at in ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.