U.S. v. Harrington

• Decision Date: 09 December 1991
• Docket Number: No. 91-1470,91-1470
• Citation: 951 F.2d 876
• Parties: UNITED STATES of America, Appellant, v. Ricky Lee HARRINGTON, Thomas Glower Hamilton, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 876

951 F.2d 876

UNITED STATES of America, Appellant, v. Ricky Lee HARRINGTON, Thomas Glower Hamilton, Appellees.

No. 91-1470.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 16, 1991.

Decided Dec. 9, 1991.

Ronald M. Kaysey, Des Moines, Iowa, argued and on brief, for appellant.

Bruce L. Cook, Des Moines, Iowa, argued, for appellees.

Before McMILLIAN, Circuit Judge, and FLOYD R. GIBSON and HENLEY, Senior Circuit Judges.

FLOYD R. GIBSON, Senior Circuit Judge.

Ricky L. Harrington and Thomas G. Hamilton were indicted for conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846 and knowing and intentional possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). The government appeals the district court's order compelling disclosure of the confidential informant used by police in securing a search warrant. We vacate and remand.

I. BACKGROUND

From April 1990 to December 1990, law enforcement officials used a confidential informant to make controlled buys of crack cocaine from occupants of an apartment in Des Moines, Iowa. Based upon the information supplied by the informant, the police obtained a search warrant for the apartment on December 7, 1990. During the search of the apartment, police seized crack cocaine and arrested the defendants. The defendants filed motions to suppress the evidence seized pursuant to the search warrant and to disclose the identity of the informant. Although the court denied the motion to suppress, it granted the motion to disclose the informant's identity. The government objected to disclosure and asked the court to conduct an in camera interview of the informant prior to making a final determination. The government also dismissed the conspiracy charges against the defendants. At the second hearing, the court denied the government's request that it interview the informant in camera and dismissed the indictment based upon the government's refusal to disclose the informant's identity.

II. DISCUSSION

The standard of review of a pre-trial ruling compelling disclosure of an informant's identity is abuse of discretion. United States v. Johnson, 886 F.2d 1120, 1122 (9th Cir.1989), cert. denied, 494 U.S. 1089, 110 S.Ct. 1830, 108 L.Ed.2d 959 (1990). The defendant bears the burden of demonstrating the need for disclosure, id., and the court must weigh the defendant's right to information against the government's privilege to withhold the identity of its confidential informants. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). "The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation." Id. Where, however, disclosure is necessary to insure a fair trial or is relevant and helpful to the defense theory of the case, the privilege of nondisclosure is eroded. Id. at 60-61, 77 S.Ct. at 627-28.

Because there is no litmus test to determine when disclosure is justifiable, courts must consider 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, 77 S.Ct. at 629. Ultimately, "one of the most relevant factors to be weighed by the court [in determining whether to order disclosure] is whether or not the evidence is material to the accused's defense or a fair determination of the cause." United States v. Barnes, 486 F.2d 776, 778 (8th Cir.1973) (emphasis in original). A trial court abuses its discretion if it orders disclosure absent a showing of materiality. United States v. Grisham, 748 F.2d 460, 463 (8th Cir.1984). In order to override the government's privilege of nondisclosure, defendants must establish beyond mere speculation that the informant's testimony will be material to the determination of the case. Id. at 464.

"[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Parker, 836 F.2d 1080, 1083 (8th Cir.1987), cert. denied, 486 U.S. 1025, 108 S.Ct. 2002, 100 L.Ed.2d 233 (1988) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)). In cases involving "tipsters" who merely convey information to the government but neither witness nor participate in the offense, disclosure is generally not material to the outcome of the case and is therefore not...