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United States v. Riley

United States District Court, S.D. Georgia, Brunswick Division

April 19, 2019

UNITED STATES OF AMERICA,
v.
ANDREW RILEY, Defendant.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE

         The Government indicted Defendant on seven felony counts related to distribution of a controlled substance, in violation of 21 U.S.C. §§ 841 and 846. Doc. 154. Before the Court are six motions by Defendant. Docs. 300, 301, 302, 303, 304, 305. Three of the motions concern requests for discovery, docs. 300, 301, 305; one motion concerns disclosure of the identities of confidential Government sources, doc. 302; one concerns notice under Federal Rule of Evidence 404(b), doc. 303; and one seeks suppression of certain evidence obtained by wiretap, doc. 304.

         For the reasons set forth below, the Court DENIES as moot two of Defendant's discovery motions, docs. 300, 301, and Defendant's request for notice under Rule 404(b), doc. 303. The Court DENIES without prejudice Defendant's motion requesting production of Brady materials, doc. 302, and Defendant's motion seeking disclosure of the identities of confidential Government sources, doc. 305. I RECOMMEND the Court DENY Defendant's motion to suppress evidence obtained by wiretap. Doc. 304.

         I. Defendant's Motions for Discovery, Notice Under Rule 404(b), and Brady Materials (Docs. 300, 301, 303, 305)

         During a motions hearing on March 6, 2019, defense counsel withdrew his request for oral argument on his Motion for Jencks Material and Motion for Discovery and Inspection, docs. 300, 301, as he had resolved those discovery issues by conferring with the Government. Defense counsel also indicated that there were no outstanding issues related to his Motion for Notice of Government's Intent to Rely upon Other Crimes Evidence, doc. 303, but reserved the right to file a motion in limine at a later date. Accordingly, these three Motions, docs. 300, 301, and 303, are DENIED as moot.

         Defendant also filed a motion seeking disclosure of information under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and United States v. Agurs, 427 U.S. 97 (1976). Doc. 302 at 1. During the motions hearing, Defendant indicated that the only unresolved issue was his request for Giglio materials related to three confidential human sources.[1] Defendant argued that the Government may rely on testimony from these sources during trial or sentencing and, because the identities of these individuals is confidential, defense counsel cannot obtain Giglio materials on its own. In response, the Government explained (1) the affidavits provided in support of the wiretaps in this case provide information related to the criminal histories of confidential sources as well, as any payments made to those sources by the Government, and (2) the Government will provide all materials required to be disclosed under Giglio at least 14 days before trial for any witness the Government intends to call as a witness. Defendant argued that 14 days prior to trial may not provide enough time to research witnesses' criminal histories.

         In light of these facts, Defendant's request for Giglio materials is not ripe for resolution at this time. The Government has not identified any confidential source it intends to call as a witness. Furthermore, the Government has already provided some potential Giglio information pertaining to confidential sources in the affidavits supporting the wiretaps in this case and has represented it will provide all required Giglio material at least 14 days before trial.[2] Accordingly, the Court DENIES without prejudice Defendant's Motion for Release of Brady Materials. Doc. 305.

         II. Defendant's Motion for Disclosure of Identity of Confidential Human Sources (Doc. 302)

         Defendant moves the Court to compel the disclosure of the identity of any confidential human sources “who either directly participated in any drug transaction that is alleged to have been conducted by [Defendant] or who provided any information that the Government intends to present or rely on at trial, at sentencing, or in a Presentence Investigation Report.” Doc. 302 at 1. During the motions hearing, defense counsel explained that the discovery materials produced by the Government identify three confidential human sources (identified in the materials as “CH1, ” “CH2, ” and “CH3”) who provided information pertaining to Defendant, and counsel stated that one or two of the informants may have participated in transactions that allegedly involved Defendant. Defendant asks that the Court order the Government to disclose the identities of these three individuals. Defense counsel explained that he seeks the identity of these individuals so that he can investigate and collect impeaching evidence before trial. Defense counsel further explained he is seeking disclosure regardless of whether the Government intends to call the individuals as witnesses. Rather, defense counsel seeks disclosure if the Government intends to rely on or use any information obtained from these sources at any stage of proceedings.

         The Government opposes Defendant's request. Doc. 428. First, the Government has not determined if it intends to call any confidential source as a witness at trial. Second, the Government confirmed it will provide the names of all confidential sources it elects to call as witnesses and, as noted above, will provide Brady, Giglio, and Jencks Act materials for all such witnesses (which may also identify the confidential sources), as required. Defendant maintains that the Court should order disclosure, even considering the Government's representations.

         Defendant relies on Roviaro v. United States, 353 U.S. 53 (1957), in support of his request. Doc. 302 at 2. In Roviaro, the United States Supreme Court explained the government is generally privileged from disclosing “the identity of persons who furnish information of violations of law to officers charged with enforcement of that law, ” but recognized that the privilege is not absolute. Roviaro, 353 U.S. at 59. Indeed, “[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.” United States v. Flores, 572 F.3d 1254, 1265 (11th Cir. 2009) (quoting Roviaro, 353 U.S. at 60-61).

         The holding in Roviaro does not apply where the Government intends to call a confidential source as a witness. Banks v. Dretke, 540 U.S. 668, 697 (2004) (“The issue of evidentiary law in Roviaro was whether (or when) the Government is obliged to reveal the identity of an undercover informer the Government does not call as a trial witness.”); United States v. Najera-Perez, No. 1:12-CR-232-2, 2014 WL 888651, at *26 (N.D.Ga. Mar. 6, 2014) (“[T]he holdings of Roviaro do not apply when the informants will testify at trial.”). Thus, where the witness will testify, there is no basis under Roviaro for early disclosure of a confidential source's identity because the defendant will have the opportunity to cross-examine the individual. United States v. Pasby, No. 1:16-CR-145-22, 2017 WL 10402560, at *11 (N.D.Ga. Oct. 4, 2017), report and recommendation adopted, 2018 WL 4953235 (N.D.Ga. Oct. 12, 2018); Najera-Perez, 2014 WL 888651, at *26 (noting that early disclosure of a testifying confidential informant might be required under some authority other than Roviaro, such as the Jencks Act, Brady, or Giglio, but concluding where the Government has agreed to make necessary disclosures under those other authorities, there is no basis for early disclosure of a confidential source's identity). Therefore, to the extent Defendant is requesting the disclosure of confidential sources the Government intends to call as witnesses, Defendant has not asserted any legal basis for that request.[3]

         To the extent Defendant seeks the identities of confidential sources who will not be called as witnesses at trial, the request is subject to the balancing test in Roviaro. This test requires the Court to balance the Government's interest in “effective law enforcement” and the “public interest in disclosing the identity of anyone whose testimony ‘would be relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause.'” United States v. Panton, 846 F.2d 1335, 1336 (11th Cir. 1988) (quoting Roviaro, 353 U.S. at 60-61). In performing this balancing test, courts consider three factors: (1) the Government's interest in non-disclosure; (2) the extent of the informant's participation in the criminal activity; and (3) the directness of the relationship between the defendant's asserted defense and the probable testimony of the informant. United States v. Tenorio-Angel, 756 F.2d 1505, 1511 (11th Cir. 1985). Where an informant acted as a mere tipster, disclosure is not required; however, where the informant was the sole participant in the charged offense other than the accused, disclosure is mandated. United States v. Gutierrez, 931 F.2d 1482, 1490-91 (11th Cir. 1991).

         The defendant bears the burden of showing that an informant's probable testimony will “significantly aid in establishing an asserted defense.” Tenorio-Angel, 756 F.2d at 1511. In order to meet his burden, the defendant must point to the “information he believes he would obtain from the confidential informant [and] why it would materially support his defense.” United States v. Jackson, No. 1:16-CR-145, 2017 WL 10402561, at *12 (N.D.Ga. Oct. 5, 2017). A defendant's “[m]ere conjecture about the possible relevance of the informant's testimony” does not warrant disclosure of an informant's identity. United States v. Young, 161 Fed.Appx. 922');">161 Fed.Appx. 922, 927 (11th Cir. 2006) In other words, if Defendant wishes to obtain the identity of confidential informants the Government does not intend to call at trial, he must point to specific information that these informants are likely to provide that would be helpful to his defense.

         Defendant has not alleged sufficient facts for the Court to order disclosure of identities under Roviaro.[4] Defendant has not indicated what information he is likely to acquire from these confidential sources, nor has he shown how that information might be helpful to his defense. Defendant instead merely states that “the Movant's need to impeach the credibility of the CHS will outweigh any interest in nondisclosure if the government . . . intends to present the allegation of the CHS during any court proceeding or other process.” Doc. 302 at 2. Moreover, Defendant has not explained the degree to which these confidential sources participated in the charged offense or directness of the relationship between an asserted defense and the probable testimony of the informant.[5] And the Government has not provided any information regarding its interest in non-disclosure. The Court, therefore, does not have the information required to engage in the balancing test set forth by the Eleventh Circuit.

         Accordingly, the Court DENIES without prejudice Defendant's Motion for Disclosure of Identity of Confidential Human Sources.[6] Doc. 302.

         III. Defendant's Motion to Suppress Evidence Obtained from Interception of wire and Electronic Communications (Doc. 304)

         In October 2017, the Government began investigating a suspected drug-trafficking organization responsible for distributing crack and crack cocaine in Brunswick, Georgia. Doc. 439-1 at 12. Through the course of this investigation, the Government began investigating Defendant as the suspected leader of the organization. Id. at 8. As part of the investigation, the Government obtained wiretaps of two separate phones (“TT1” and “TT2”) allegedly connected to Defendant and his trafficking network. Docs. 439, 439-2.

         Defendant moves the Court to suppress the information obtained from both wiretaps on multiple grounds. Defendant argues the information obtained from the TT2 wiretap should be suppressed because the application for that wiretap was not supported by probable cause. Doc. 304 at 6-7. Defendant argues that the information obtained from both wiretaps should be suppressed because: (1) the Government did not adequately show the necessity of either wiretap; (2) neither of the intercepts were timely sealed; and (3) both wiretaps impermissibly authorized the gathering of geolocation data. Id. at 7-14.[7] Defendant also requested an evidentiary hearing on his motion, which the Court granted and held in conjunction with the motions hearing on March 6, 2019. Doc. 304 at 1; Doc. 442.

         A. Background

         TT1 Wiretap. On March 14, 2018, the Honorable Lisa Godbey Wood authorized the first wiretap permitting the Government to record communications to and from TT1, bearing a number ending in 9955. Doc. 439 at 12. The TT1 wiretap application was supported by a 55-page affidavit by Special Agent Steven T. Hall of the Federal Bureau of Investigation (“FBI”). Doc. 439-1. In his affidavit, Agent Hall described a drug-distribution network in Brunswick, Georgia, involving several individuals, including Defendant. Id. at 8. Agent Hall described the investigation of this network, including law enforcement's use of confidential human sources, drug purchases made by the sources, recordings made by the sources, and other information obtained from the sources. Id. at 12-30.

         Agent Hall explained that a confidential source had engaged in consensually recorded calls, primarily with Defendant, but also with Codefendant Seals on TT1 to purchase drugs. Id. at 21-25. This source also advised the Government that Defendant frequently changed his telephone number. Id. at 17. Two other confidential sources purchased narcotics from Defendant and consensually recorded conversations with him on phones other than TT1 and TT2. Id. at 37-38. A previously authorized pen register showed that numerous calls were made ...


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