United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge.
Introduction and Procedural History
before the Court are the Pre-Trial Motions of the Defendant,
Aaron Bangaroo. (Doc. 23).
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)
• 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).
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
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
3. Motion to Require the Government to Reveal any Agreement
Between any Agent or Agency of the Government and any
4. Motion to Disclose the Identity of the Government's
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
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).
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).
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
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"
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 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).
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
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).
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
[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.
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
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)).
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
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.
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
detectives stated that they received information from two
confidential sources (hereinafter "CS#1" and
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