US v. Wilson
| Decision Date | 25 August 1995 |
| Docket Number | No. 95-40052-01-SAC.,95-40052-01-SAC. |
| Parties | UNITED STATES of America, Plaintiff, v. Vinol Scott WILSON, Defendant. |
| Court | U.S. District Court — District of Kansas |
Charles D. Dedmon and David J. Phillips, Office of Federal Public Defender, Topeka, KS, for defendant.
Randy M. Hendershot, Office of United States Attorney, Topeka, KS, for the U.S.
The case comes before the court on the defendant's motion to reveal identity of confidential informant (Dk. 18) and motion to suppress (Dk. 20). On August 17, 1995, the parties presented argument and evidence on the defendant's motions. Having read the briefs, heard the evidence and researched the controlling law, the court is ready to rule.
The indictment charges the defendant, Vinol Scott Wilson ("Wilson") with three counts. The first count charges that Wilson on or about November 3, 1994, possessed with the intent to distribute 9.48 grams of a mixture or substance containing cocaine base or crack cocaine in violation of 21 U.S.C. § 841(a)(1). The second count charges that Wilson on or about November 3, 1994, used a pistol-gripped twelve gauge shotgun during and in relation to a drug trafficking crime in violation of 21 U.S.C. § 841(a)(1). The third count charges that Wilson on or about November 3, 1994, used a 9mm pistol during and in relation to a drug trafficking crime in violation of 21 U.S.C. § 841(a)(1).
Arguing Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and its progeny, Wilson seeks a court order requiring the government to disclose the identities and addresses for the two confidential informants whose statements served as the basis of the search warrant. Wilson asserts the informants directly participated in the illegal activity on which the criminal charges are brought. With respect to the first informant who purchased cocaine from Tibbs at Wilson's apartment, Wilson argues this informant's testimony would corroborate his defense that he did not possess the cocaine found in his apartment and would contradict any possible testimony from Tibbs implicating Wilson in drug trafficking activities. Wilson emphasizes that evidence of others selling drugs from his apartment is significant with regards to whether Wilson constructively possessed the cocaine found in his apartment. As to the second informant who purchased cocaine from Jelani Lewis at 1733 S.W. Clay, Wilson contends this testimony also would be relevant on issues of intent and constructive possession. For several reasons, Wilson's arguments are unavailing.
The government has a "privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." Roviaro, 353 U.S. at 59, 77 S.Ct. at 627. Id. It is a limited privilege that gives way "where the disclosure of an informer's identity, or 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." Id. at 60-61, 77 S.Ct. at 627-28. The government has the right to assert the privilege without any preliminary showing of likely reprisal or retaliation against the informant. United States v. Valles, 41 F.3d 355, 358 (7th Cir.1994) (citation omitted).
The decision to reveal a confidential informant's identity involves balancing the defendant's asserted need against the government's interest considering "the crime charged, the possible defenses, the possible significance of the informer's testimony and other relevant factors." Roviaro, 353 U.S. at 62, 77 S.Ct. at 628. The informant in Roviaro was a participant in the charged criminal activity. While holding that the informant's identity should have been disclosed, the Court emphasized that "no fixed rule with respect to disclosure is justifiable" and that each case is subject to the balancing test described above. 353 U.S. at 62, 77 S.Ct. at 628.
The two central factors in the balance are the informant's level of participation in the illegal activity for which the criminal charges are brought and the probative value of the informant's probable testimony. United States v. Nixon, 777 F.2d 958, 967 (5th Cir.1985); United States v. Ridley, 814 F.Supp. 992, 996 (D.Kan.1993). Thus, the oft-stated rule is that disclosure is not required when the confidential informant did not participate in the illegal activity and the informant's probable testimony would be cumulative. See, e.g., United States v. Leahy, 47 F.3d 396, 398 (10th Cir.1995); United States v. Moralez, 908 F.2d 565, 567 (10th Cir.1990). When the informant's role was nothing more than a mere tipster, "disclosure is required only in the exceptional case where it is vital to a fair trial." United States v. Lewis, 40 F.3d 1325, 1335 (1st Cir. 1994) (citation omitted).
The burden rests with the defendant to show "a genuine need of ... disclosure that outweighs the public's interest." United States v. Bender, 5 F.3d 267, 270 (7th Cir. 1993); see 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). The defendant may not rely on mere speculation to meet this burden. Moralez, 908 F.2d at 567; see Leahy, 47 F.3d at 398 . "The confidential informant privilege `will not yield to permit a mere fishing expedition, nor upon bare speculation that the information may possibly prove useful.'" Valles, 41 F.3d at 358 (quoting Dole v. Local 1942, IBEW, 870 F.2d 368, 373 (7th Cir.1989)). "`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.'" United States v. Blevins, 960 F.2d 1252, 1259 (4th Cir.1992) (quoting 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence ¶ 51006 (1991)); see also Ridley, 814 F.Supp. at 996.
Despite Wilson's arguments to the contrary, the informants here are not direct participants in or percipient or transactional witnesses to the crimes charged. Neither informant actively participated in a investigation that targeted Wilson. At most, both informants were mere tipsters. They provided the information that led to the search warrant and to the search of Wilson's apartment. The record does not show that either informant said they had purchased drugs from Wilson. Neither informant was present during the search of Wilson's residence. Whatever the informants participated in or witnessed two days before the search is not the basis on which the criminal charges are brought. Wilson is charged with offenses— possession with the intent to distribute the crack cocaine and use of firearm during and in relation to a drug trafficking crime—based on what the officers found during their search. These counts have nothing to do with either of the drug sales made to the informants. Wilson is not charged with conspiring with Tibbs or Lewis to possess or distribute the crack cocaine. "In short, the informant's role ended after providing the police with the relevant information that served as the foundation for obtaining the search warrant." United States v. Bender, 5 F.3d at 271.
Wilson is unable to show that the informants' probable testimony would be material and relevant to his defense that he did not intentionally possess the crack cocaine or firearms. There is nothing in the record to suggest that the informants were in any position to know whether Tibbs and Lewis were the only persons at the duplex to deal drugs or, more importantly, were the only ones there to possess drugs. See Bender, 5 F.3d at 270. Their affidavits simply show themselves to be regular informants who had learned of information that crack cocaine was being sold at this duplex. Nor is it significant to Wilson's defense that the informants are able to implicate others, but not the defendants, with regard to drug activity that is not the subject of the criminal charges. Finally, because the first informant saw Tibbs take the cocaine from his pocket, there is no reasonable basis to believe that the informant could testify that the cocaine found during the search of Wilson's apartment was Tibbs. See Bender, 5 F.3d at 271.
The facts here are not "strikingly similar" to those in Moralez, as Wilson argues. In Moralez, 908 F.2d at 567, the confidential informant told officers that an individual named Sanchez was dealing marijuana out of a service station. After conducting surveillance, officers arrested Sanchez, Pinelli and Moralez at the service station on various charges, including conspiracy to possess with the intent to distribute marijuana. Moralez asked for disclosure of the confidential informant arguing the informant had witnessed the crime and would be the only testimony supporting his defense that he was not involved in Sanchez's drug operations and just happened to be in the wrong place at the wrong time. The district court denied disclosure accepting the government's representation that the informant was a mere tipster. On appeal, the Tenth Circuit remanded the case for the district court to conduct an in camera hearing "to determine whether the informant's testimony is relevant and whether disclosure is warranted." 908 F.2d at 568. The appeals court said this about the possible relevance of the informant's testimony:
On the record before this court, we are unable to determine...
To continue reading
Request your trial
-
State v. Richards
...on premises, that accused had a violent past and that accused was on parole from a second-degree murder conviction); U.S. v. Wilson, 899 F.Supp. 521, 529 (Kan.1995) (no-knock entry to execute search warrant for crack cocaine upheld; determination of reasonableness required by Wilson require......
-
United States v. Banks, Case No. 13-cr-40060-DDC
...his neutral and detached role, the Court declines to invalidate the warrant based on mere speculation. See United States v. Wilson, 899 F. Supp. 521, 528 (D. Kan. 1995) (holding that in the absence of any evidence that the issuing judge abandoned his neutral and detached role, "[the defenda......
-
United States v. Ward
...neutral and detached role, the Court declines to invalidate the warrant based on Mr. Ward's mere speculation. See United States v. Wilson, 899 F. Supp. 521, 528 (D. Kan. 1995) (holding that in the absence of any evidence that the issuing judge abandoned his neutral and detached role, "[the ......