Free Motion for Discovery - District Court of Arizona - Arizona

1 LAW OFFICES OF MICHAEL J. BRESNEHAN, P.C. Michael J. Bresnehan, Esquire 2 1761 East McNair Drive, Suite 101 Tempe, AZ 85283-5002 3 480-345-7032 [email protected] 4 State Bar No.: 009415 5 Attorney for Defendant 6 7 8 9 10 11 vs. 12 TEDDY LEE LOWE, 13 14 15 16 17 18 19 government's "informant" who allegedly "tipped off" the police that defendant and his two acquaintances were involved in possible criminal activity, all for the reasons set forth in the COMES NOW the defendant, by and through the undersigned attorney, and hereby moves this Court for an order compelling the government to reveal to the defendant the identity of the Defendant. United States of America, Plaintiff, IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case No.: CR-04-487-PHX-ROS MOTION FOR ORDER COMPELLING DISCOVERY (INFORMANT I.D.)

20 accompanying memorandum of points and authorities. It is expected that excludable delay under 21 Title 8 U.S.C. §3161(h)(1)(F) will occur as a result of this motion or from an order based thereon. 22 23 24 25 26 27 28 Case 2:04-cr-00487-ROS Document 108 Filed 08/22/2005 Page 1 of 3 s/ Michael J. Bresnehan Attorney for Defendant MICHAEL J. BRESNEHAN, P.C. RESPECTFULLY SUBMITTED this _____ day of August, 2005 by

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MEMORANDUM OF POINTS AND AUTHORITIES The government alleges that the defendant and two friends, John Murphy and Lita Young, traveled to the Jewel Box (pawn shop) in Phoenix, Arizona, and while there, John Murphy purchased a rifle under circumstances that struck one or more of the store employees as suspicious. During the sales transaction, a store employee ("informant") called the BATF to report a possible

7 "straw" gun purchase for a prohibited possessor. BATF agants and local police surveilled and 8 eventually arrested the defendant and Lita Young. It is unclear to defendant whether the store 9 employee who reported the suspicious activity is an on-going informant for the BATF (or other 10 11 12 13 agency). Presumably, the "informant" was an eye witness to the events leading up to the purchase of the rifle by John Murphy which the government now claims was a "straw" purchase for the

14 defendant (an alleged prohibited possessor). As such, the "informant's" recollections would be 15 both relevant, and almost certainly material to this case. Clearly, such information is crucial to the 16 defendant's preparation for trial. 17 18 19 20 Determining whether the government should be compelled to disclose the name of the informant requires balancing the public interest in protecting the flow of information against the accused's right to prepare a defense. The informant's level of involvement with the criminal

21 activity is an important consideration. The more active the participation, the greater the need for
th 22 identification. U.S. v. Ayala, 643 F.2d 244 (5 Cir. 1981). If the disclosure is essential to a fair

23 determination of the case, the trial court may require disclosure and, if the government withholds 24 25 26 27 28 the information, dismiss the action. U.S. v. Scafe, 822 F.2d 928 (10th Cir. 1987). WHEREFORE, for the aforementioned reasons, the defendant moves this Court for an order compelling the government to reveal the identity of the aforementioned "informant". RESPECTFULLY SUBMITTED this _____ day of August, 2005 by

Case 2:04-cr-00487-ROS

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1 2 3 4 5 6 Copy of the foregoing delivered this ___ day of August, 2005, to: 7 Bill Solomon, Esq. 8 Assistant U.S. Attorney Two Renaissance Square 9 40 N. Central, Suite 1200 Phoenix, Arizona 85004-4408 10 Lisa Maxie-Mulllins 11 Arizona Attorney General's Office 1275 West Washington St. 12 Phoenix, AZ 85007-2926 13 Teddy Lee Lowe 14 Defendant 15 By__s/ Michael J. Bresnehan 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cr-00487-ROS

MICHAEL J. BRESNEHAN, P.C.

s/ Michael J. Bresnehan Michael J. Bresnehan Attorney for Defendant

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