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,
Dominique Michael Buckner. (Docs. 20, 21, 22, 23, 24, 25,
October 2, 2018, a federal grand jury returned an indictment
charging Buckner with knowingly, intentionally, and
unlawfully possessing with intent to distribute 28 grams and
more of cocaine base (crack) in violation of 18 U.S.C. §
841(a)(1) and 841(b)(1)(B)(iii) (Count 1) and knowingly
possessing a firearm in furtherance of a drug trafficking
crime (Count 2). (Doc. 1).
October 31, 2018, Buckner appeared before Magistrate Judge
Joseph Saporito wherein he entered a plea of not guilty to
the indictment and was ordered detained. (Docs. 17, 18).
Defendant thereafter filed the following pre-trial motions
(Docs. 20, 21, 22, 23, 24, 25, 26), with a consolidated
supporting brief (Doc. 27), as follows:
1. Motion to Compel Disclosure of Confidential Informant
2. Motion for Discovery Pursuant to Rule 16 (Doc. 21);
3. Motion for Grand Jury Transcripts (Doc. 22);
4. Motion for Disclosure Pursuant to Rules 404(b) and 609 of
Federal Rules of Evidence (Doc. 23);
5. Motion for Disclosure Pursuant to Federal Rule of Evidence
807 (Doc. 24);
6. Motion for Bill of Particulars (Doc. 25);
7. Motion for Expert Information Pursuant to Rule 16(a)(1)(G)
of the Federal Rules of Criminal Procedure (Doc. 26).
United States filed a brief in response to each of
Defendant's motions (Docs. 39, 40, 41, 42, 43, 44, 45).
Defendant did not file any reply brief.
Court will address Defendant's pre-trial motions in turn.
Motion to Compel Disclosure of Confidential Informant (Doc.
first motion asserts that he "believe[s] that there are
numerous confidential informants and/or cooperating witnesses
involved in" this case and requests that the Court order
the Government to disclose the identities of these
individuals "to aid him in support of the Pre-Trial
Motions as well as at trial." (Doc. 20).
in large part on Roviaro v. United States, 353 U.S.
53 (1957), Defendant asserts that he is entitled to the
disclosure of information pertaining to any confidential
informants in this case. (Doc. 27, at 2-6).
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 v. Illinois, 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 v. Illinois, 386 U.S. 300, 308 (1967)
(quoting 8 Wigmore, Evidence § 2374 (McNaughton rev.
to engaging in the Roviaro 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
"[w]hile the Government has a privilege to withhold the
identity of confidential informants, a defendant can overcome
this privilege if he demonstrates that disclosure is relevant
and helpful to [his] defense or is essential to a fair
determination of his guilt." United States v.
Gatlin, 613 F.3d 374, 379-380 (3d Cir. 2010) (internal
quotation marks omitted) (finding that Defendant "did
not carry his burden of demonstrating that disclosure was
relevant to his defense; rather, his defense theory merely
indicated a hope that the informant's identity would be
Defendant states that "[d]iscovery and investigation in
the present case has revealed that there are potentially
multiple confidential informants involved" and that
"[t]hese unknown/informants/witnesses are expected to
testify or provide information that may be introduced at
trial to the issues of substantive guilt or be attributed to
the Defendant for sentencing purposes." (Doc. 27, at 4).
However, in response to Defendant's motion, the
Government succinctly explains:
As is clear from disclosure of police reports to the defense,
the instant investigation was initiated when police received
information from the defendant's mother that he was
present at her residence. The case was not initiated by a
confidential source. The government is not foreclosing the
possible use of the "historical" confidential
informants at trial, if his or her testimony is relevant and
admissible. However, the above description as to the origin
of the investigation is proffered to suggest that the motion
for disclosure of the informants' identity is misplaced.
There is no confidential source to provide. Even if
there where, the defendant sets forth no specific need for