Opinion
No. 03-40140-01-SAC
March 18, 2004
MEMORANDUM AND ORDER
The case comes before the court on the defendant's three pretrial motions: Motion to Disclose Confidential Informant (Dk. 18), Motion to Disclose Expert Evidence (Dk. 19), Motion to Sever Counts One and Two from Count Three (Dk. 20), and Motion for Notice of Evidence (Dk. 21). The government has filed a consolidated response addressing each of the motions. (Dk. 22). Counsel presented oral argument in support of their positions on March 11, 2004. At that time, the parties agreed that the defendant's discovery motions (Dks. 19 and 21) were moot in light of the government's response. Having reviewed all matters submitted and having researched the relevant law, the court is ready to rule on the two motions still pending.
INDICTMENT
LaSha Williams is the sole defendant named in a three-count indictment. Count one charges the defendant with possessing with intent to distribute approximately 3.2 grams of cocaine base on January 4, 2001, in violation of 21 U.S.C. § 841(b)(1)(C). Count two charges the defendant with possessing firearm ammunition on January 4, 2001, after a felony conviction in violation of 18 U.S.C. § 922(g). Count three charges the defendant with possessing a firearm on November 25, 2003, after a felony conviction in violation of 18 U.S.C. § 922(g).
CASE SUMMARY
The parties agree that the offenses charged in counts 1 and 2 arise from the execution of a search warrant on January 4, 2001, at 1425 S.E. Sage Street in Topeka, Kansas. The affidavit in support of the search warrant discloses that a confidential informant ("CI") who had been working with Deputy Sheriff Phillip D. Higdon since October of 1999, had made controlled purchases of cocaine base on December 28, 2000, and January 2, 2001, at this residence. On both occasions, the CI purchased the cocaine base from a black male only known to the CI as "Shay." On January 3, 2001, Deputy Higdon learned that "Shay" had informed the CI that he was in possession of drugs for sale. Based on this tip, Deputy Higdon prepared an affidavit swearing that he believed the CI was truthful and credible and obtained a search warrant on what he believed to be the residence of the black male named Shay and a white female, Darcy Dreasher, the girlfriend of Shay and registered owner of the vehicle parked at this residence on December 28, 2000. Officers executed the warrant on January 4, 2001, finding scales with white residue, loose marijuana, a marijuana cigarette, a box of ammunition, and a baggie of cocaine base. The ammunition and cocaine base are the subject of counts 1 and 2 of the indictment.
In its brief, the government sets out some of the statements made by the defendant and Ms. Dreasher during their post-arrest interviews. The defendant admitted to officers that he was rolling the marijuana cigarette when the officers entered with the warrant and that the scales and crack cocaine found in the trash can were his. During her interview, Darcy Dreasher told officers that a person named "Ted" had supplied the defendant with crack cocaine and that the defendant had been weighing it prior to the officers' arrival. Ms. Dreasher also said that the defendant had started selling crack cocaine "a few months ago." Based on the items found during the search and the statements made after the arrest, the defendant was charged with counts one and two of the indictment.
On November 25, 2003, the defendant was arrested for a state parole violation and consented to the search of a residence. Officers found a handgun during the search. The parties have not disclosed any other facts or allegations surrounding the charge in count three.
MOTION TO DISCLOSE CONFIDENTIAL INFORMANT (Dk. 18)
According to the defendant's brief, the officers executing the search warrant on January 4, 2001, found the defendant, Ms. Dreasher and another male, Tedrick Jenkins at the house. The defendant asserts that he told the officers that he did not sell cocaine base and that Ms. Dreasher told the officers she had seen Tedrick Jenkins sell crack cocaine to the defendant.
The defendant now seeks only to learn the name and locating information about the CI named in the search warrant affidavit and to hold in abeyance his remaining requests until after he has spoken with and investigated the CI. Even though the prior controlled buys made by the CI are not charged in the indictment, the defendant argues the CI's testimony could be exculpatory insofar as the CI either could describe and identify the seller to be Mr. Jenkins or could have difficulty describing the seller. The defendant says he will challenge the government's proof of the defendant's knowledge of, participation in, or responsibility for any drug transactions as well as the government's proof of the defendant's possession of any drugs for trafficking purposes. The government advises that it does not intend to call the CI as a witness at trial and that the CI was used here solely to establish probable cause for the search warrant which led to the discovery of drugs and ammunition. The government emphasizes that the defendant has not been charged with selling crack cocaine to the CI in December or January, that the CI neither participated in nor witnessed the illegal conduct alleged in the indictment, and that the defendant has not shown the CI could give any testimony relevant to the defendant's defense.
In Roviaro v. United States, 353 U.S. 53, 59 (1957), the Supreme Court recognized "the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." This privilege is "by no means absolute." United States v. Brodie, 871 F.2d 125, 128 (D.C. Cir. 1989). Whether to disclose the identity of a confidential police informant is a determination that requires a court to balance the public interest in protecting the flow of information in a manner necessary for effective law enforcement against an individual's right to prepare his defense. 353 U.S. at 62. In determining whether disclosure is necessary, the court must consider the particular circumstances of the case, including the crime charged, the possible defenses, and the significance of the informer's testimony. Id. "Where it is clear that the informant cannot aid the defense, the government's interest in keeping secret his identity must prevail over the defendant's asserted right of disclosure." United States v. Martinez, 979 F.2d 1424, 1429 (10th Cir. 1992), cert. denied, 507 U.S. 1022 (1993).
As a general rule, "[a] defendant may obtain the identity and whereabouts of an informer if his testimony might be relevant to the defendant's case and justice would be best served by disclosure." United States v. Leahy, 47 F.3d 396, 398 (10th Cir. 1995). In practice, the Tenth Circuit has not required disclosure "where the information sought `would be merely cumulative,' or where the informer did not participate in the illegal transaction," United States v. Mendoza-Salgado, 964 F.2d 993, 1001 (10th Cir. 1992) (quoting United States v. Scafe, 822 F.2d 928, 933 (10th Cir. 1987)) (other citations omitted), where the informant is not a participant or witness to the crime, United States v. Brantley, 986 F.2d 379, 383 (10th Cir. 1993), or where the informant is a mere tipster, United States v. Wynne, 993 F.2d 760, 766 (10th Cir. 1993). "Where it is clear that the informant cannot aid the defense, the government's interest in keeping secret his identity must prevail over the defendant's asserted right of disclosure." United States v. Martinez, 979 F.2d 1424, 1429 (10th Cir. 1992).
A defendant seeking disclosure has the burden of proof. United States v. Sinclair, 109 F.3d 1527, 1538 (10th Cir. 1997). The defendant must 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). Mere speculation about the usefulness of an informant's testimony is not sufficient to warrant disclosure. Mendoza-Salgado, 964 F.2d at 1001. "A CI's [confidential informant's] testimony must be shown to be valuable to a defendant; mere speculation is not enough." United States v. Leahy, 47 F.3d at 398. "`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 ¶ 510[06] (1991)); see also United States v. Ridley, 814 F. Supp. 992, 996 (D. Kan.1993).
The defendant has not met his burden of showing how the CI's testimony would be valuable to the fair defense of his case in light of the government's assertion that the CI's involvement was limited to providing probable cause to search a particular residence. The defendant offers nothing but sheer speculation that the CI would say anything exculpatory for the defendant. The presence of other persons at the house when the warrant was executed does create a defense as to who possessed the drugs found in the search. Even so, the CI's statements as summarized in the affidavit give no indication that he would say anything exculpatory about the defendant's connection to the drugs found on January 4, 2001. Even to indulge the defendant's speculation on this subject, the possibility seems particularly remote considering the CI's statements that the seller was known as "Shay" which is more closely connected to the defendant's actual name than Mr. Tedrick Jenkins' name. The defendant provides the court with no basis for believing that the CI would identify Jenkins as the seller on the prior occasion or that the CI would have a difficult time identifying the defendant as the seller. In short, the CI was not present when the charged activity occurred, was not an active participant in the charged criminal activity, and does not appear able to provide any exculpatory evidence. Under these circumstances, the public interest in encouraging the free flow of information between citizens and law enforcement officers outweighs the defendant's need for the identity of the informant or for any other background information regarding the informant. This motion is denied.
MOTION TO SEVER COUNTS ONE AND TWO FROM COUNT THREE (Dk. 20)
The defendant argues that count three is improperly joined under the terms of Fed.R.Crim.P. 8(a) and alternatively that count three is prejudicially joined under the terms of Fed.R.Crim.P. 14. The defendant contends it is not sufficient similarity for purposes of Rule 8 that counts two and three both charge violations of 18 U.S.C. § 922(g) and rely on the same prior felony conviction. As for prejudicial joinder, the defendant believes the jury will be more likely to convict him of the unrelated 2003 firearm charge simply because of the damage done to his character from the evidence offered to prove the 2001 drug charge. The defendant points to the unexplained three-year delay in charging him on the 2001 offenses as weighing favorably for severance.
Rule 8 provides that an "indictment . . . may charge a defendant in separate counts with 2 or more offenses if the offenses charged . . . are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." Thus, offenses may be joined in compliance with Rule 8 when they are "of the same or similar character." United States v. Holland, 10 F.3d 696, 699 (10th Cir. 1993), cert. denied sub nom. Kelly v. United States, 510 U.S. 1064 (1994); United States v. Sturmoski, 971 F.2d 452, 460 (10th Cir. 1992). Courts construe Rule 8 "broadly to allow liberal joinder to enhance the efficiency of the judicial system." United States v. Hopkinson, 631 F.2d 665, 668 (10th Cir. 1980) (citations omitted), cert. denied, 450 U.S. 969 (1981). To determine whether joinder is appropriate under Rule 8, the court must consider the facts and circumstances of each case. See United States v. Bailey, 952 F.2d 363, 364-65 (10th Cir. 1991).
Count two charges a violation of the very same firearm statute as charged in count three. Both counts charge the defendant with unlawfully possessing weapons after the same prior felony conviction. These common circumstances are enough to show the counts are "of the same or similar character" for purposes of joinder under Rule 8(a). United States v. Fortenberry, 919 F.2d 923, 926 (5th Cir. 1990) (concluding that because both charges were for weapons violations they were of the same or similar character within the meaning of the rule governing joinder of claims), cert. denied, 499 U.S. 930 (1991); see United States v. Janus Industries, 48 F.3d 1548, 1557 (10th Cir.), cert. denied, 516 U.S. 824 (1995); United States v. Bailey, 979 F. Supp. 1319, 1325 (D. Kan. 1997). That count two is alleged to have been committed over two years prior to count three does not prevent these counts from sharing the same or similar character. The court finds that count three is properly joined.
Under proper circumstances, the court may grant severance even if joinder under Rule 8 is appropriate. United States v. Hollis, 971 F.2d 1441, 1456 (10th Cir. 1992), cert. denied, 507 U.S. 985 (1993). Under Fed.R.Crim.P. 14, the court may order the separate trials of counts "[i]f the joinder of offenses . . . in an indictment, . . . appears to prejudice a defendant." Severance is a matter of discretion, not of right, and the defendant bears a heavy burden of demonstrating prejudice to his case. United States v. Hollis, 971 F.2d 1441, 1456 (10th Cir. 1992), cert. denied, 507 U.S. 985 (1993); see United States v. Holland, 10 F.3d 696, 699 (10th Cir. 1993) ("The defendant bears a heavy burden of showing real prejudice from the joinder of the two counts."), cert. denied, 510 U.S. 1064 (1994); United States v. Wright, 932 F.2d 868, 876 (10th Cir.) ("[T]he defendants must make a clear showing that prejudice would result from a joint trial."), cert. denied, 502 U.S. 962 (1991). "In deciding on a motion for severance, the district court has a duty to weigh the prejudice resulting from a single trial of counts against the expense and inconvenience of separate trials." Hollis, 971 F.2d at 1456. "The Supreme Court has emphasized that trial courts have a continuing duty at all stages of the trial to grant a severance if prejudice does appear." United States v. Peveto, 881 F.2d 844, 857 (10th Cir.), cert. denied, 493 U.S. 943 (1989). In establishing real prejudice, the defendant must "demonstrate that the alleged prejudice he suffered outweighed the expense and inconvenience of separate trials." United States v. Parra, 2 F.3d 1058, 1063 (10th Cir. 1993), cert. denied, 510 U.S. 1026 (1993).
The court denies the defendant's motion for severance. The defendant has not demonstrated that severance is either necessary or appropriate in this case. "Neither a mere allegation that defendant would have a better chance of acquittal in a separate trial, nor a complaint of the "spillover effect" . . . is sufficient to warrant severance." United States v. Janus Industries, 48 F.3d at 1557 (quotation and citation omitted). Any concern about the prejudicial spillover effect may be cured by an appropriate limiting instruction at trial. Defendant has not demonstrated that the alleged prejudice he will suffer outweighs the expense and inconvenience of separate trials, thus severance is not warranted under Rule 14.
In sum, the defendant has not demonstrated that he will be prejudiced by the joinder of the two counts.
IT IS THEREFORE ORDERED that the defendant's Motion to Disclose Confidential Informant (Dk. 18) and Motion to Sever Counts One and Two from Count Three (Dk. 20) are denied;
IT IS FURTHER ORDERED that the defendant's Motion to Disclose Expert Evidence (Dk. 19) and Motion for Notice of Evidence (Dk. 21) are denied as moot.