United States v. Nathans

• Decision Date: 26 April 2019
• Docket Number: CRIMINAL CASE NO. 1:18-CR-00168-TCB-JFK
• Parties: UNITED STATES OF AMERICA v. HUBERT NATHANS and EDWARD CULTON, Defendants.
• Court: U.S. District Court — Northern District of Georgia

UNITED STATES OF AMERICA v. HUBERT NATHANS¹ and EDWARD CULTON, Defendants.

CRIMINAL CASE NO. 1:18-CR-00168-TCB-JFK

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

April 26, 2019

ORDER AND REPORT AND RECOMMENDATION

Pending before the court are Defendant Edward Culton's motion [Doc. 68] for the name(s) and location(s) of confidential informant(s) and motion [Doc. 69] and supplemental brief [Doc. 74] to suppress evidence obtained as the result of the execution of a federal search warrant [Doc. 74-1 ("Search Warrant") and 74-2 ("Affidavit")] for his residence located at 250 Pharr Road, Apartment 1011, Atlanta, Georgia.

I. Disclosure Confidential Informant

Pending before the court is Defendant Culton's motion [Doc. 68] for disclosure of the confidential informant(s) ("CI") that made the controlled drug purchases fromDefendant Culton's co-defendant, Hubert Nathans. The Government alleges that the source of the controlled substances sold to the CI(s) is Defendant Culton. In order to prevent disclosure of Defendant's theory of defense, Defendant sought and was allowed to make an en camera presentation to the court regarding the reasons why disclosure of the CI's/CIs' name(s) and location(s) was material to the defense. That presentation occurred on February 6, 2019, and is recorded under seal. Thereafter, the court heard from the Government, opposing the motion, en camera on February 13, 2019, also recorded under seal, regarding the reasons for non-disclosure.

"In Roviaro[ v. United States, 77 S. Ct. 623 (1957)], the Supreme Court recognized that the government has the privilege to withhold from disclosure the identity of its informants, but that this privilege is limited." United States v. Degaule, 797 F. Supp. 2d 1332, 1384 (N.D. Ga. 2011). In order to determine whether disclosure of a confidential informant is appropriate, "a court must engage in a balancing test, taking into account the particular circumstances of each case, the crime charged, possible defenses, and the potential significance of the informant's testimony." United States v. Gutierrez, 931 F.2d 1482, 1490 (11^th Cir. 1991) (citing Roviaro, 77 S. Ct. at 627-28). This inquiry focuses "on three factors: (1) 'the extent of the informant's participation in the criminal activity'; (2) 'the directness of the relationship betweenthe defendant's asserted defense and the probable testimony of the informant'; and (3) 'the government's interest in nondisclosure.'"² United States v. Moore, 611 Fed. Appx. 572, 575 (11^th Cir. 2015) (quoting United States v. Tenorio-Angel, 756 F.2d 1505, 1509 (11^th Cir. 1985)); and see United States v. Flores, 572 F.3d 1254, 1265 (11^th Cir. 2009) (same). The burden is on Defendant to prove that the informant's probable testimony would bear a direct relationship on the defendant's asserted defense. However, "'[m]ere conjecture or supposition about the possible relevancy of the informant's testimony is insufficient to warrant disclosure.'" United States v. McDonald, 935 F.2d 1212, 1217 (11^th Cir. 1991) (citations and footnote omitted); and see Moore, 611 Fed. Appx. at 575 ("The defendant has the burden of showing that a CI's testimony 'would significantly aid in establishing an asserted defense.'") (citation omitted); Degaule, 797 F. Supp. 2d at 1384 ("The burden is on the defendant to establish that the Roviaro criteria in a particular case counsel in favor of disclosure by way of sufficiently specific demonstration of the relevancy and potential helpfulness of each of the informers' testimony.").

With respect to the first and second factors, the participation of the CI/CIs making the controlled drug buys from Nathans is, needless to say, more significant than a mere tipster, but the CI/CIs lacked any direct contact with Defendant Culton and nothing before the court indicates that the CI/CIs actually has/have any information regarding the source of the controlled substances that Nathans sold in January and February 2019.³ Additionally, the drug purchases were "controlled" - meaning that law enforcement officers met with the CI/CIs before each purchase, monitored the purchases through the audio recordings and met with the CI/CIs following each purchase for debriefing. Particularly, the law enforcement officers obtained from the CI/CIs the controlled substances purchased from Nathans on each occasion, and, therefore, those officers should be able to identify based on chain of custody the specific substances for each controlled purchase. The court has been presented with no non-speculative reasons why the CI/CIs either would be in a position to offer additional information about each controlled buy or would be able to cast doubt on any testimony that Nathans may offer concerning the source of the controlled substancessold to the CI/CIs. See Degaule, 797 F. Supp. 2d at 1384 ("'Mere conjecture about the possible relevance of the informant's testimony is insufficient.'") (quoting United States v. Young, 161 Fed. Appx. 922, 927 (11^th Cir. 2006)).

And, as the Government is aware, Defendant seeks disclosure of the CI's/CIs' name(s) and location(s) in order to offer impeachment evidence against Nathans' girlfriend, Alexandra Lagouros ("Lagouros"), who was present during each controlled buy and who Defendant contends provided false information to federal agents concerning her knowledge of Nathans' activities selling controlled substances - she denied that Nathans had sold any controlled substances since 2016 as far as she was aware. The Government, however, has stated that Lagouros will not be a witness at trial. Defendant's concern that the Government will decide at some point to call Lagouros at trial is speculative and does not provide grounds for disclosure.

As noted, the burden is on Defendant to "prove that the informant's probable testimony would bear a direct relationship on the defendant's asserted defense." McDonald, 935 F.2d at 1217. Because Defendant has failed to establish this factor, the court is not required to "consider the strength of the government's interest in preserving the confidentiality of the informant." United States v. Kerris, 748 F.2d 610, 614 (11^th Cir. 1984); and see United States v. Acosta, 807 F. Supp. 2d 1154, 1273(N.D. Ga. 2011) (same). Disclosure of the CI's/CIs' name(s) and location(s) is not required. And consideration of the Government's en camera presentation reinforces the court's decision.

"[T]he interest of law enforcement in protecting informants is a material consideration, although certainly not a consideration entitled uniformly to decisive influence." United States v. Lewis, 156 F. Supp. 2d 1280, 1291 (M.D. Fla. 2001). Without disclosing details, the Government generally explained that the CI/CIs continue to work with the Roswell Police Department and that disclosure of name(s) and location(s) could impact ongoing law enforcement operations. The Government acknowledged that no actual threats had been made against the CI/CIs; however, there are the usual concerns of retribution inherent against individuals known to be working with local police departments. See id. ("No specific evidence in this record suggests an explicit threat to this informant; the inherent and constant exposure of an informant to acts of vengeance establishes the threat[; t]herefore, disclosure of an informant's identity usually requires some material showing of a testimonial advantage not available to the defendant through other witnesses."). Based on the information provided by the Government weighed against Defendant's speculative reasons offered in support of disclosure, the court denies Defendant's motion "in order (1) to preserveactive and productive sources of information for law enforcement and (2) to protect cooperating persons from gratuitous exposure to revenge." Id.

For the foregoing reasons, the court DENIES Defendant's motion [Doc. 68] for disclosure of the CI's/CIs' name(s) and location(s).

II. Motion to Suppress Evidence

Also pending before the court is Defendant's motion to suppress evidence. [Doc. 69]. The Government opposes the motion to suppress. [Doc. 76]. In support of the motion to suppress the federal search warrant for his residence, Defendant contends that he is entitled to a Franks hearing⁴ because the affiant for the search warrant deliberately or with reckless disregard for the truth included misleading information in the affidavit and omitted material information from the affidavit and that, when the affidavit is corrected, probable cause is lacking for the warrant. [Docs. 69 and 74]. The Government opposes the motion to suppress contending that Defendant has not made a sufficient showing to entitle him to a Franks hearing and that the affidavit otherwise provides probable cause for the search. [Doc. 76]. After consideration of the arguments of the parties, the search warrant and affidavit,additional evidence provided by the parties and binding and persuasive legal authority, the court recommends that Defendant's motion to suppress be denied.

a. Search Warrant & Affidavit

On February 15, 2018,⁵ Special Agent Kimbrell Dodder, Drug Enforcement Administration ("DEA"), presented an application and affidavit for a search warrant for 250 Pharr Road, Apartment 1011, Atlanta, Georgia ("Target Location"), to search for evidence of violations of 21 U.S.C. §§ 841, 843(b) and 846, relating to possession with the intent to distribute and conspiracy to distribute controlled substances. (Search Warrant; Affidavit). Agent Dodder ("Affiant") began the affidavit by outlining his training and experience as a law enforcement officer, primarily focusing on his training and experience in investigating drug trafficking organizations. (Affidavit ¶ 1). Based on that training and experience, Affiant outlined the characteristics of drug traffickers and the evidence of and related to drug trafficking activity anticipated to be found in their residences. (Id. ¶ 2). In support of probable...