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United States v. Buckner

United States District Court, M.D. Pennsylvania

January 13, 2020

UNITED STATES OF AMERICA,
v.
DOMINIQUE MICHAEL BUCKNER, 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, Dominique Michael Buckner. (Docs. 20, 21, 22, 23, 24, 25, 26).

         On 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).

         On 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 (Doc. 20);
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).

         The 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.

         The Court will address Defendant's pre-trial motions in turn.

         II. Analysis

         A. Motion to Compel Disclosure of Confidential Informant (Doc. 20)

         Defendant's 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).

         Relying 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).

         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 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. 1961)).

         Prior 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 entrapment"'.).

         Further, "[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 helpful.").

         Here, 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 ...

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