United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE
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.
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.
Defendant's Motions for Discovery, Notice Under Rule
404(b), and Brady Materials (Docs. 300, 301, 303,
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.
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. 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.
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. Accordingly, the Court DENIES
without prejudice Defendant's Motion for Release
of Brady Materials. Doc. 305.
Defendant's Motion for Disclosure of Identity of
Confidential Human Sources (Doc. 302)
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
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.
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
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.
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).
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.
has not alleged sufficient facts for the Court to order
disclosure of identities under
Roviaro. 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. 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
the Court DENIES without prejudice
Defendant's Motion for Disclosure of Identity of
Confidential Human Sources. Doc. 302.
Defendant's Motion to Suppress Evidence Obtained from
Interception of wire and Electronic Communications (Doc.
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.
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. 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.
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.
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 ...