US v. Reece
| Decision Date | 26 April 1995 |
| Docket Number | No. 95-40017-01-SAC.,95-40017-01-SAC. |
| Citation | 886 F. Supp. 1544 |
| Parties | UNITED STATES of America, Plaintiff, v. Kenneth R. REECE, Defendant. |
| Court | U.S. District Court — District of Kansas |
Marilyn M. Trubey and David J. Phillips, Office of Federal Public Defender, Topeka, KS, for defendant.
Richard L. Hathaway, Office of U.S. Atty., Topeka, KS, for plaintiff.
On February 22, 1995, the grand jury returned a sealed indictment charging the defendant, Kenneth Ray Reece, with two separate counts of possession of cocaine base with the intent to distribute (in violation of 21 U.S.C. § 841(a)(1)), one count of using or carrying a firearm during and in relation to a drug trafficking crime (in violation of 18 U.S.C. § 924(c)(1)), and one count of maintaining a place for the purpose of manufacturing, distributing, or using a controlled substance (in violation of 21 U.S.C. § 856(a)(1)). All of the crimes charged in the indictment are alleged to have occurred on or about November 22, 1994.
This case comes before the court upon the following pretrial motions filed by the defendant:
The government has filed a consolidated response to the defendant's motions (Dk. 23).
On April 21, 1995, the court conducted a hearing on the pending motions. The court, having considered the briefs and arguments of counsel, the evidence presented, and the applicable law, is now prepared to rule
The defendant seeks disclosure of the evidence the government intends to offer pursuant to Fed.R.Evid. 404(b). The government indicates that it does not intend to introduce any evidence pursuant to Fed.R.Evid. 404(b) in its case-in-chief. The government, however, reserves the right to introduce certain evidence under Fed.R.Evid. 608(b) Evidence of Character and Conduct of Witness; Specific instances of conduct and 609 Impeachment by Evidence of Conviction of Crime.
This motion is denied as moot.
A confidential informant apparently made controlled buys of crack cocaine from a person named "Ken" at a trailer located at 1919 S.E. Adams, Lot # 44. This information provided by the confidential informant served as the factual basis for an affidavit submitted by Officer Brian Hill in support of his application for a search warrant of that location.
Under the progeny of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), Reece seeks an order compelling the government to disclose the full name and address of the informant in this case, material relevant to impeaching the informant, as well as requiring, inter alia, the government to produce the informant at trial. Reece indicates that this information is necessary to determine the validity of the search warrant. During oral argument, the defendant argued that the confidential informant was not merely a "concerned citizen" and that disclosure was appropriate.
In response, the government suggests that Reece has embarked on what "must be charitably described as a fishing expedition." The government notes that the defendant does not challenge the accuracy of the affidavit, but simply seeks discovery on the informant. The government indicates that the informant was a mere tipster and that discovery is not warranted. The government also notes that the defendant has not made the requisite showing, or for that matter even requested a Franks hearing. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
The Tenth Circuit recently considered the defendant's right to disclosure of the identity of a confidential informant.
United States v. Moralez, 908 F.2d 565, 567 (10th Cir.1990); see United States v. Wynne, 993 F.2d 760, 766 (10th Cir.1993); United States v. Martinez, 979 F.2d 1424, 1426 (10th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1824, 123 L.Ed.2d 454 (1993); United States v. Lewis, 671 F.2d 1025, 1027 (7th Cir.1982) ().
In Moralez, the district court denied the defendant's motion to compel the identity of the confidential informant. The court of appeals remanded the case because it appeared that the district court had made the decision to withhold the identity of the confidential informant without the benefit of evidence and without an offer of proof. The court of appeals directed the district court to conduct an in camera hearing to determine the competing governmental and individual interests. Specifically, an in camera hearing was required because the record failed to indicate the significance of the confidential informant's role in securing the defendant's arrest. Also, the record did not clearly indicate what "governmental interest" was served by non-disclosure.
On remand the district court conducted a hearing at which it asked counsel for the government and the defendant to submit questions to be asked of the informant. The court then excused counsel and brought the informant into a closed courtroom for interrogation. The district court concluded that revealing the informant's identity might endanger the informant's safety. The district court also concluded that the confidential informant was a "mere tipster."
In United States v. Moralez, 917 F.2d 18 (10th Cir.1990) (), the court of appeals affirmed the district court. The court of appeals concluded:
The informant had only limited information, was not present during the commission of the offense, and could not provide any evidence which is not cumulative or which is exculpatory. To the contrary, the limited information possessed by the informant is strictly inculpatory, and it will not provide material to support his theory of the case or to aid his impeachment of his codefendants as he has asserted.
The burden is on the defendant to come forward with evidence establishing that the Roviaro criteria favor disclosure. United States v. Blevins, 960 F.2d 1252, 1258-59 (4th Cir.1992). More than suspicion or speculation is needed to meet the defendant's burden. United States v. Williams, 898 F.2d 1400, 1402 (9th Cir.1990). "`The defendant must explain to the court as precisely as possible what testimony he thinks the informer could give and how this testimony would be relevant to a material issue of guilt or innocence.'" Blevins, 960 F.2d at 1259 (quoting 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence ¶ 51006 (1991)).
In the case at bar, Reece has not made a sufficient showing to demonstrate that he is entitled to an order compelling production of the confidential informant or any of his concomitant requests. The confidential informant apparently did not participate in the crimes with which the defendant is actually charged. The informant is accurately characterized as a mere tipster and disclosure is not required or warranted in this case. This motion is denied.
The defendant seeks all Giglio information in the government's possession. The government responds that there is no such material to disclose. During oral argument the defendant conceded that this motion is moot in light of the government's response. This motion is denied as moot.
Reece seeks an order suppressing from evidence all items seized as a result of a search warrant executed on November 22, 1995, at a trailer house located at 1919 S.E. Adams, Lot # 44. According to Reece's brief, officers executing the warrant did not knock and announce their presence prior to gaining entrance to the trailer. Instead, the door to the trailer was forced open with a "battering ram." Only then did officers announce that they were state police officers executing a search warrant.
Reece acknowledge that the federal knock and announce statute, 18 U.S.C. § 3109, does not apply to state...
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US v. Wilson
...32 F.3d 876, 882 (4th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 939, 130 L.Ed.2d 883 (1995); see also United States v. Reece, 886 F.Supp. 1544, 1550 (D.Kan.1995). The offense with which the targets of the investigation were to be charged, trafficking in crack cocaine, is a serious of......