United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE.
February 13, 2018, the grand jury returned an indictment
charging Defendant Esgardo Viera-Orozco
(“Viera-Orozco”) with various drug trafficking
and firearm offenses. (Docket #6). The indictment is based in
part on a controlled buy of heroin from a confidential
informant. Viera-Orozco filed a motion on March 2, 2018,
requesting that the Court compel the government to
immediately disclose the identity of the informant. (Docket
#23). The government conceded that it must reveal the
informant's identity, but it asked that disclosure occur
no earlier than fifteen days before trial out of concern for
the informant's safety. (Docket #33 at 5).
March 20, 2018, Magistrate Judge William E. Duffin issued an
order denying Viera-Orozco's motion and directing the
government to disclose the confidential informant's
identity no later than April 23, 2018, fourteen days prior to
trial. (Docket #39). Viera-Orozco filed an objection to that
ruling on March 29, 2018. (Docket #43). The government
responded on April 5, 2018. (Docket #45). A magistrate's
ruling on a non-dispositive matter, such as this discovery
dispute, can only be overturned if it is “contrary to
law or clearly erroneous.” Fed. R. Crim. P. 59(a).
has not shown Magistrate Duffin's ruling to be clearly
erroneous or contrary to law. The government has a limited
privilege to shield the identity of a confidential informant
from a defendant. United States v. Shaw, 824 F.3d
624, 629 (7th Cir. 2016). Yet here, because the informant was
part of a controlled drug buy that forms the basis for part
of the indictment, it is undisputed that the government must
disclose his identity. Roviaro v. United States, 353
U.S. 53, 64-65 (1957). The question is when this must occur.
government generally has credible fear for the safety of its
confidential informants in drug cases in light of the
inherent danger in drug trafficking activity, including the
prevalence of gun-related violence in this trade. See
United States v. Herrero, 893 F.2d 1512, 1527 (7th Cir.
1990); United States v. Bender, 5 F.3d 267, 269 (7th
Cir. 1993). Further, the government has information
generating a fear of retaliation as to this case in
particular. During an interaction in January 2018 between the
confidential informant and Viera-Orozco's two
co-defendants, the co-defendants, who were armed with two
firearms, tried to pressure the informant to help them
discover the identity of someone who had allegedly stolen
some of their counterfeit money. (Docket #33 at 4). They made
insinuations that they would harm the alleged thief and the
thief's family for this slight, and that they would harm
the confidential informant if he did not provide the
information sought. Id. Further, a photograph on one
of the phones seized from the co-defendants showed severed
body parts in a garbage bag. Id. Thus, the
government claims that the defendants' conduct raises an
especially strong possibility of violent retaliation against
objection, Viera-Orozco contends that the disclosure date
ordered by Magistrate Duffin, April 23, 2018, simply does not
give him enough time to adequately assess his prospects for
success at trial, nor to prepare for the trial itself.
(Docket #43 at 2). April 23 is only one day prior to the
deadline for submitting a plea agreement, and, as noted,
fourteen days before trial. Viera-Orozco submits that the
need to investigate the informant's criminal history,
subpoena relevant documents, and interview witnesses will
consume more than the two weeks currently allotted to him.
Id. at 3-4. Further, he distances himself from the
conduct of his co-defendants, asserting that their actions
are not his and that a protective order could sufficiently
protect the informant. Id. at 4. Finally,
Viera-Orozco suggests that the case against him is weak
because video taken of the controlled buy does not depict his
face. Id. at 1. He feels this militates in favor of
disclosure of the informant's identity, as it makes the
informant's credibility the cornerstone of the
government's case. Id.
for the final point, all of these concerns were expressed to
Magistrate Duffin and adequately addressed in his order. The
Court agrees with the magistrate's sound analysis. First,
while the disclosure date places pressure on Viera-Orozco to
act quickly to prepare for trial, the government has made a
convincing showing that this is a case where the informant is
at risk if his identity is disclosed. Whether that risk comes
from Viera-Orozco or his associates, it cannot be ignored.
Nor does it appear that a protective order would be adequate
to allay these palpable concerns. Delay in disclosing the
informant's identity is, therefore, warranted.
the government will disclose the informant's criminal
history at the same time as the informant's identity in
light of their Giglio obligations. This will lessen
the burden on Viera-Orozco to prepare his challenge to the
informant's credibility. True, he may need to move
quickly to investigate and corroborate additional information
about the informant, but balancing that burden against the
informant's safety is the key to determining how the
limited privilege plays out in each case. The magistrate
appropriately weighed the competing considerations when
arriving at his decision.
the Court is not persuaded by Viera-Orozco's argument
that the informant's credibility is especially crucial in
this case as opposed to others. The government disputes his
claim, noting that another video taken the same day as the
controlled buy clearly shows Viera-Orozco in the same
clothing as the person in the controlled buy. See
(Docket #45 at 4). On balance, the Court does not see a
heightened need to explore the informant's credibility in
this case so as to outweigh the other considerations,
including the informant's safety. As a consequence, the
objection to Magistrate Duffin's order will be
IT IS ORDERED that Defendant Esgardo
Viera-Orozco's objection to Magistrate Judge William E.
Duffin's March 20, 2018 Order (Docket #43) be and the
same is hereby OVERRULED.
Because the objection was
filed so close to the disclosure date for the informant's
identity, the Court issues its ruling without the benefit of
Viera-Orozco's reply, lest the objection be ...