United States District Court, E.D. Wisconsin
ORDER ON DEFENDANTS' PRETRIAL MOTIONS
Joseph, United States Magistrate Judge.
26, 2018, a grand jury sitting in the Eastern District of
Wisconsin returned a sixteen-count indictment charging seven
defendants with various drug trafficking and firearms
offenses, including conspiracy to distribute one kilogram or
more of heroin and five kilograms or more of cocaine, in
violation of 21 U.S.C. §§ 846 and 841(a)(1) and
841(b)(1)(A). The defendants have entered pleas of not
guilty. This case has been designated as complex, and jury
trial before the Honorable Lynn Adelman will be scheduled
after resolution of pretrial motions.
before me are pretrial motions of defendants Brandon Ellis
(Docket# 93) and Orlando Copeland (Docket #94). Both move for
immediate disclosure of confidential informants.
Ellis moves for the immediate disclosure of the identities of
three unnamed informants (CS-4, CS-6, and CS9) who allegedly
provided law enforcement information regarding Ellis. He
argues that because the government's case against him
relies entirely on the alleged statements of the three
informants, immediate disclosure of their identity is
necessary for him to prepare for trial.
Copeland moves for immediate disclosure of the identity of
CS-5. Copeland argues that immediate disclosure of CS-5's
identity is necessary for the defense to investigate and
determine the accuracy and truthfulness of his allegations in
order to prepare for trial.
government argues that immediate disclosure poses a potential
risk to the safety of the informants. Specifically, in this
case one of the other defendants (neither Ellis nor Orlando
Copeland) has indicated a desire to harm informants. (Docket
# 96 at 4.) However, the government acknowledges that the
defendants will need the identities of some of the informants
to prepare for trial. (Docket # 96 at 7.) The government
proposes disclosure of the names of the testifying informants
to the defendants no less than thirty days prior to trial.
(Id.) The government also agrees that the disclosure
will include the identities of the informants who made
controlled buys and Brady/Giglio information with
respect to the witnesses. (Id.)
parties do not dispute the governing law. It is
well-established that as a general rule, the government
enjoys a limited privilege of withholding the identity of an
informant. See Roviaro v. United States, 353 U.S.
53, 59-60 (1957); United States v. Bender, 5 F.3d
267, 269 (7th Cir. 1993). This privilege encourages citizens
to perform their obligation to communicate their knowledge of
the commission of crimes to law enforcement officials by
preserving the informant's anonymity. United States
v. Jefferson, 252 F.3d 937, 940 (7th Cir. 2001). The
government is granted this limited privilege as a right, and
need not make a threshold showing of likely reprisal or
retaliation against the informant in order to assert the
privilege. United States v. Valles, 41 F.3d 355, 358
(7th Cir. 1994).
automatic, the government's privilege is not absolute.
“Where the disclosure of an informer's identity . .
. is relevant and helpful to the defense of an accused, or is
essential to a fair determination of a cause, the privilege
must give way.” Roviaro, 353 U.S. at 60-61.
The defendant bears the burden in the face of an assumption
that the privilege should apply. Valles, 41 F.3d at
358. “The confidential informant privilege will not
yield to permit a mere fishing expedition, nor upon bare
speculation that the information may possibly prove
useful.” Id. (internal quotation and citation
of a confidential informant's identity “must depend
on 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.” Roviaro, 353 U.S. at
62. Factors to be considered are whether the informant is a
transactional witness and whether the informant's
testimony is relevant and could assist the defendant.
Bender, 5 F.3d at 270. “Informants who played
major roles in the criminal occurrences will of course offer
more significant testimony than those whose participation was
peripheral; a showing that a potential defense may depend on
the informant's involvement also weighs in favor of
disclosure.” Valles, 41 F.3d at 358.
the government does not contest the need to disclose the
names of the testifying informants and the informants who
participated in the controlled buys. The only issue is the
timing of the disclosure. The government proposes to disclose
no less than thirty days prior to trial. Both defendants
argue that they need disclosure earlier than the thirty days
proposed by the government. Specifically, Copeland argues he
will need to retain an investigator, he may need time to
arrange an in-custody interview if the informant is in
custody, he may need to obtain transcripts, and he may need
time to seek funding from the court as CJA appointed counsel.
no less than thirty days prior to trial is common practice in
this district. See United States v. Bond, No.
10-CR-117, 2010 WL 6749142 (E.D. Wis. Dec. 6, 2010);
United States v. Mathis, No. 09-CR-254, 2010 WL
1507881 (E.D. Wis. Apr. 14, 2010). However, balancing the
need to protect the informants with the need to give the
defense sufficient time to prepare, I will order that the
government disclose the names of the testifying informants,
the names of the informants participating in the controlled
buys, and the Brady and Giglio information
no less than forty-five days prior to trial. See United
States v. Tirado, No. 16-CR-168, 2011 WL 6960847, at
*18-20 (E.D. Wis. Jan. 26, 2018), adopted by 2011 WL
6960847, at *6-7 (E.D. Wis. Apr. 16, 2018); United States
v. Wortham, No. 14-CR-84, 1014 WL 5431110 (E.D. Wis.
Oct. 24, 2014). Thus, the defendants' motions for
immediate disclosure of the identities of the informants are
granted in part and denied in part.
THEREFORE, IT IS HEREBY ORDERED that defendants'
motions for immediate disclosure of identities of
confidential informants (Docket ## 93 ...