Free Motion for Disclosure - District Court of California - California

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Richard A. Tamor, Esq. TAMOR & TAMOR 1901 Harrison St., 9th Floor Oakland, CA 94612 Tel. (510) 874-4170 Fax (510) 874-4174 web: www.TamorLaw.com Attorneys for Defendant, Michael Northcutt

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, Plaintiff,

MICHAEL NORTHCUTT, 16 17 18 19 TO: 20 21 22 23 24 25 26 27 Defendant.

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. CR-07-00669 SI

NOTICE OF MOTION AND MOTION TO DISCLOSE CONFIDENTIAL INFORMANT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: May 23, 2008 Time: 11:00 a.m. Dept.: Hon. Susan Illston

JOSEPH RUSSONIELLO, UNITED STATES ATTORNEY; ANDREW CAPUTO, ASSISTANT UNITED STATES ATTORNEY PLEASE TAKE NOTICE that on May 23, 2008, at 11:00 a.m., or as soon thereafter as

the matter may be heard in the above-entitled court, defendant Michael Northcutt, by and through his counsel, will move the court for an order compelling disclosure of the true identity and present whereabouts of the informant in the above case, or in the alternative, conducting an in camera hearing, or dismissing the accusatory pleading. This motion is made on the grounds that the informant has information that is material

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to the defense and is therefore essential to a fair determination of the cause. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant Michael Northcutt requests that this court compel disclosure of the identity of

5 the confidential informant who provided information to Officer Nocetti, which resulted in the 6 7 8 9 10 11 12 13 14 15 received information from their Communications Division that "a black male adult was driving a 16 white Ford Taurus station wagon in the area of Market St. and Taylor St." Communications 17 18 19 20 21 22 23 24 25 26 -227
Notice of Mo tion, Mo tion, and M emora ndum o f Points and A uthorities in Suppo rt of Mo tion to Disclose Inform ant's Ide ntity United States v. Northcutt - CR-07-00669 SI

search and seizure of Mr. Northcutt and his vehicle. The disclosure of the informant's identity, address, and matters relating to credibility and reliability is mandated because the informant is the sole percipient witness to the alleged crime, and his credibility and reliability are relevant to probable cause. Alternatively, should this court deny disclosure, it should conduct an in camera hearing because Mr. Northcutt has made at least the "minimal threshold" showing for the hearing. II. STATEMENT OF FACTS According to San Francisco Police Department Incident Report number 070754986 (Exh. "A"), on July 26, 2007, at 11:13 a.m., San Francisco Police Officers Laval (#4016) and Kim (#976)

described the vehicle as having tinted windows with a license plate ending in either "R301" or "R103." Further the black male was described as having a "Desert Eagle" .50 caliber handgun on his lap. At 11:48 a.m., while driving north on Sixth Street at Market, the officers saw a white Ford Taurus stopped for a red light northbound on Market at Taylor. Though the Taurus had tinted windows, they could see that a Black man was driving. The car's license plate ended in R301. Officers Laval and Kim effected a "felony stop." As the two officers exited their vehicles, Officer Meehan (#109) pulled his vehicle alongside, and with their machine guns drawn, ordered the

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driver, Michael Northcutt, out of the vehicle. He complied with their orders and laid prone on the ground. The officers did a "protective sweep" of the vehicle "for any outstanding suspects." "Due to the dark tint covering the windows," the officers "had to open each door and the lift gate to

5 `clear' the vehicle." While doing so, they noticed the barrel tip of a black handgun protruding from 6 7 8 9 10 11 12 13 14 15 with a partial plate ending with "R301." Finally, the vehicle was northbound on Taylor St. toward 16 Turk St. within the past several minutes, and that the firearm was similar to a "Desert Eagle." 17 18 19 20 21 22 23 24 25 26 -327
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underneath the right front passenger seat. They arrested Mr. Northcutt, took photos, and seized the gun, a Baretta. The officers later learned that the source of information was San Francisco Police Officer Nocetti (#394), who in turn obtained the information from a "confidential reliable informant" ("CRI"). Other than to characterize him as "reliable," the Incident Report provides no other information about the "CRI." The CRI told Officer Nocetti that "they observed a black male in possession of a firearm while he was driving in the 6th/Market St. Area." The CRI further stated that "the vehicle, which the black male was the driver and sole occupant," was a white Ford Taurus

At the Tenderloin Station where Mr. Northcutt was subsequently taken, he denied knowledge of the gun, even though he had been driving the vehicle for three days. (See Warrant Affidavit, Exh. "B"). As a result of the firearm found in Mr. Northcutt's vehicle, the police officers sought, and obtained, a search warrant to search Mr. Northcutt's residence for weapons-related evidence. (Exh. "B"). /// /// ///

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II. DISCUSSION THIS COURT SHOULD COMPEL DISCLOSURE OF THE INFORMANT'S IDENTITY AND OTHER INFORMATION BECAUSE HE WAS A PERCIPIENT WITNESS TO THE ILLEGAL ACTIVITY CHARGED IN THE INDICTMENT 1. This Court Should Compel Disclosure of the Informant's Identity Since He is the Sole Percipient Witness of Material Facts Relevant to Mr. Northcutt's Guilt or Innocence

In Roviaro v. United States, 353 U.S. 53 (1957), the seminal opinion regarding the disclosure of confidential information, the United States Supreme Court established that when the government has made a claim of privilege to withhold the identity of a person who has furnished information to it, and charges have been filed against an accused, the situation then

11 12 13 14 15 16 17 18 19 20 Other agents followed in their own cars. The informant drove to a location where the defendant 21 exited the car and picked up a small package. The defendant returned to the car, placed the 22 23 24 25 26 -427
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...calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous 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. Id. at 63. In Roviaro, the defendant entered the front passenger seat of the car that the confidential informant was driving. A law enforcement agent was secreted in the trunk of the vehicle. The agent could hear the defendant directing he informant where to drive. The defendant also asked about money that the informant owed him, and told the informant that he brought "three pieces."

package inside, and walked away. A law enforcement agent immediately retrieved the package, which contained heroin, from the floor of the car. Id. at 56-58. The Supreme Court reversed the district court's denial of the defendant's request for

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disclosure of the informant's identity. Id. at 54. While the high court acknowledged that there was "no fixed rule" with respect to when disclosure is required, it found that the privilege of confidentiality is limited by the "fundamental requirements of fairness." Id. at 60-62. Revealing the informant's identity was mandated by the particular circumstances of that case. The defendant

5 and the informer had been together shortly before the defendant's arrest. The informer "helped set 6 7 8 9 10 11 12 13 14 15 and took part in the transaction." Id. Moreover, "[t]he desirability of calling John Doe as a witness, 16 or at least interviewing him in preparation for trial, was a matter for the accused rather than the 17 18 19 20 21 22 23 24 25 26 -527
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up the commission of the crime and...was present at its occurrence." Id. Additionally, the informant was "a participant in and a material witness to" the sale of heroin charged in one count. Id. at 65, n.15. These circumstances made the informant's "possible testimony... highly relevant," and "might have been helpful to the defense." Id. at 63-64. Because of the nature of the crime, it was likely that only the accused and the informant would have been witnesses, and thus unless the accused "...waived his constitutional right not to take the stand in his own defense, [the informer] was his one material witness." Id. at 64. The opportunity to cross-examine a police officer "...was hardly a substitute for an opportunity to examine the man who had been nearest to [the defendant]

Government to decide." Id. The centerpiece of the Roviaro rule, therefore, is that "...where the disclosure of an informer's identity, or of 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, the privilege [to maintain the name and communication secret] must give way." Id. at 60-61. The Ninth Circuit and other circuits have construed Roviaro to require the disclosure of a confidential informant who was either a participant in, or a percipient witness to, a charged offense. In United States v. Hernandez, 608 F.2d 741, 744 (9th Cir. 1979), the Ninth Circuit articulated "the distinction that our decisions have drawn between those situations wherein an informant's role was

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merely peripheral, and, in contrast, those situations wherein the informant actually witnessed the crime, or, as here even helped instigate the criminal transaction." Because the informant in Hernandez "was a participant in the events that were critical to the prosecution's case, no claim could be raised under Roviaro, nor was it raised, that [the informant]'s identity could be lawfully

5 withheld from the appellants." Id. 6 7 8 9 10 11 12 13 14 15 especially where the informer is the only percipient witness to the transaction, or crime, other than 16 the accused. Roviaro, 353 U.S. at 64. 17 18 19 20 21 22 23 24 25 26 -627
Notice of Mo tion, Mo tion, and M emora ndum o f Points and A uthorities in Suppo rt of Mo tion to Disclose Inform ant's Ide ntity United States v. Northcutt - CR-07-00669 SI

Similarly, in United States v. Bonilla, 615 F.2d 1262, 1263 (9th Cir. 1980), the Ninth Circuit stated that the defendant "was entitled to learn the informant's identity, because the informant was a percipient witness to the criminal transaction underlying his conviction." See also, United States v. Skeens, 449 F.2d 1066, 1071 (D.C. Cir. 1971) and cases cited therein (lower courts consistently have held that Rovioro requires disclosure of an informant who "was an active participant or was present at the scene of the crime"); United States v. Cervantes, 542 F.2d 773, 775 (9th Cir. 1976) ("The Government acknowledges that the informant [] was a percipient witness to the transaction. It therefore supplied Cervantes with the informant's identity."). Indeed, disclosure is required

Over the years, the cases have distinguished a "mere tipster" from a person who was a percipient witness, or an actual participant in the offense charged. See, generally, United States v. Sai Queng Wong, 886 F.2d 252, 254-55 (9th Cir. 1989); also United States v. Warren, 42 F.3d 647, 653 (D.C. Cir. 1994) ("We have long adhered to the rule that Rovioro does not require disclosure of an informant who is not an actual participant in or a witness to the offense charged.") Courts have indicated that the accused who seeks disclosure of an informant "...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

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1252, 1259 (4th Cir. 1992). Under the Ninth Circuit's formulation, the accused must show that "...he has more than a `mere suspicion' that the informant has information which will prove `relevant and helpful' or will be essential to a fair trial." U.S. v. Amador-Galvan, 9 F.3d 1414, 1417 (9th Cir. 1993). In the present case, the informant claimed to be a percipient witness to the crime: "I was

6 7 8 9 10 11 12 13 14 2. 15 An unsupported refusal to allow any inquiry into an informer's address has been deemed 16 17 18 19 20 21 22 23 24 25 /// 26 -727
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contacted by a Confidential Reliable Informant, hereinafter referred to as CRI, who stated that they observed a black male in possession of a firearm..." (Exh. "A"). Mr. Northcutt, however,

asserts that he had no knowledge of the firearm that was found in the vehicle that he had been driving. Other than Mr. Northcutt, the informant appears to be the only witness as to whether or not Mr. Northcutt had prior possession of the firearm found in the vehicle. Thus, the informant's observations are material to Mr. Northcutt's guilt or innocence with respect to possession of the firearm. This Court Should Compel Disclosure of Informant's Address

error. United States v. Harris, 501 F.2d 1 (9th Cir. 1974). The Ninth Circuit has reiterated that an inquiry into an informer's identity and address may be critical, particularly where the informer is a witness, or the agent-instigator of the criminal transaction. Hernandez, 608 F.2d at 744-45. In the present case, the witness was allegedly a percipient witness to the crime charged, at the time s/he provided information to Officer Nocelli. The informant's address is relevant to whether or not s/he was in a position to observe whether or not Mr. Northcutt possessed the firearm, or had a particularized knowledge of Mr. Northcutt's activities, based on the informant's contact with potential sources of information.

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/// 3. This Court Should Compel Disclosure of Evidence Bearing on the Informant's Credibility and Reliability

It is axiomatic that evidence bearing on the credibility of an informant, which is either known or reasonably available to the government, must be disclosed. This includes agreements entered into between the government and an informant. See United States v. Bagley, 473 U.S. 667676 (1985). Disclosure of some benefits does not relieve the government of its obligation to disclose others. See, Benn v. Lambert, 283 F.3d 1040, 1058 (9th Cir. 2002) ("The undisclosed benefits that [the informant] received added significantly to the benefits that were disclosed and certainly would have `cast a shadow' on [the informant's] credibility."). Even the expectation of

11 leniency should be revealed. Belmontes v. Woodford, 335 F.3d 1024, 1043 (9th Cir. 2003). A 12 13 14 15 16 17 18 19 20 Finally, issues relating to the informant's credibility and reliability go directly to Mr. 21 Northcutt's Fourth Amendment rights and defenses relating to unlawful searches and seizures. 22 23 24 25 26 -827
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person's status as a paid informant has been deemed by the United States Supreme Court to qualify the information concerning the payment as "evidence favorable" to that defendant. Banks v. Dretky, 540 U.S. (2004). Brady v. Maryland, 373 U.S. 83 (1963) has been interpreted to require disclosure of impeachment evidence. Giglio v. United States, 405 U.S. 150, 154 (1972). As the Ninth Circuit has stated, "Material impeachment evidence of the key [government] witness is equally subject to the disclosure requirements of Brady." Silva v. Woodford, 279 F.3d 825, 855 (9th Cir. 2002).

Officer Nocetti gave the directive to stop Mr. Northcutt, and his directive was based solely on information provided by a "CRI," based on the CRI's observations. (Exh. "A") The stop and search of Mr. Northcutt's vehicle led to the search warrant for his residence and provided the requisite

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probable cause. (Exh. "B") Apart from this tip, none of the officers, including Officer Nocetti, had reason to suspect Mr. Northcutt of illegal conduct. Courts will uphold an investigatory stop based on a tip or other secondary information only when the information possesses sufficient indicia of reliability that are independently corroborated

5 by the police. United States v. Thomas, 211 F.3d 1186, 1190 (9th Cir. 2000). However, the police 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 descriptive, not predictive, information about the suspect, similar to the type of information 21 provided in our case. The Supreme Court found that the officer reasonably relied on the informant 22 23 24 25 26 -927
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in this case were unable to corroborate any of the information provided by the informant, other than the suspect's readily observable location and appearance. In Florida v. J.L., 529 U.S. 266 (2000), the Supreme Court held that information from an untested informant that is merely descriptive, not predictive, cannot support reasonable suspicion: An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. J.L., 529 U.S. at 272. "That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the [stop], had a reasonable basis for suspecting [defendant] of engaging in unlawful conduct," since "[t]he reasonableness of official suspicion must be measured by what the officers knew before the conducted their search." Id. at 271. In Warden v. Williams, 407 U.S. 143, 146-147 (1972), the informant gave merely

in that case because the informant was known to the officer personally, had provided information in the past, and informant came forward personally to give information that was immediately verifiable at the scene. Id. at 146.

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The key distinction between J.L. and Williams, then, is the anonymity of the informant in J.L., and the known and tested reliability of the informant in Williams. In this case, therefore, the reasonableness of the stop turns on the reasonableness of Officer Nocetti's reliance on the CRI. Unlike Williams, however, the Incident Report in this case provides no factual information about

5 the informant. All Officer Nocetti states in the report is that he "was contacted by a Confidential 6 7 8 9 10 11 12 13 14 15 If the court declines to order disclosure of the informants' identities outright, Ninth Circuit 16 precedent requires that an in camera hearing be conducted to determine whether the informant's 17 18 19 20 21 22 23 24 25 26 -1027
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Reliable Informant." Other than characterizing the informant as "reliable," Officer Norcetti gives no further information about the informant. We do not know who the informant is, or when, where, or how this informant knew of the information. We do not know if this informant has provided reliable information in the past, or if credibility issues surround him. Accordingly, any violation of Mr. Northcutt's Fourth Amendment rights turns on the informant's credibility and reliability. B. ALTERNATIVELY, THE COURT SHOULD CONDUCT AN IN CAMERA HEARING

testimony would be helpful to the defendants. United States v. Ramirez-Rangel, 103 F.3d 1501, 1508 (9th Cir. 1997)(overruled on other grounds by Watson v. United States, 128 S. Ct. 579 (2007); see also, Amador-Galvin, 9 F.3d at 1417. An in camera hearing "may provide many of the same benefits as disclosure itself, particularly where defendant's counsel is allowed to participate under an order not to reveal any information disclosed in chambers." United States v. Spires, 3 F.3d 1234, 1238 (9th Cir. 1993). Unlike actual disclosure, "an in camera hearing bears little risk of disclosing the identity of the informant and does not jeopardize the government's future use of that individual." Id. The defendant must make only "a minimal threshold showing" that the informant's

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identity would be "relevant to at least one defense." Id. In United States v. Fixen, 780 F.2d 1434, 1439-1440 (9th Cir. 1986), the court stated that where the identity of the informant bears only on probable cause and does not require its disclosure, an in camera hearing would accommodate the defendant's needs:

5 6 7 8 9 10 11 12 13 14 15 reasonableness of the stop also turns on the informant's reliability. Accordingly, should this court 16 deny disclosure of the informant's identity, at the very least, it should conduct an in camera 17 18 19 20 21 22 23 24 25 26 -1127
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The in camera procedure provides an equally-acceptable accommodation of the competing interests of the government and the accused in the situation presented here, wherein the question is whether a law enforcement officer has lied. Through disclosure of the informer's identity to the trial judge, and such subsequent inquiries by the judge as may be necessary, the government can be protected from any significant, unnecessary impairment of secrecy, yet defendant can be saved from what could be serious police misconduct. Id. In the present case, the credibility of the informant bears on both Mr. Northcutt's guilt or innocence, as well as reasonable suspicion/probable cause for the stop and subsequent search of his residence. Other than Mr. Northcutt, the informant is the sole witness as to whether Mr. Northcutt possessed and knew of the firearm found in the vehicle he was driving. The

hearing. III. CONCLUSION Based on the foregoing, Mr. Northcutt respectfully requests that this court disclose the informant's identity, address, and matters relating to his credibility and reliability, or alternatively, conduct an in camera hearing.

Case 3:07-cr-00669-SI 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Dated: April 25, 2008

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Respectfully Submitted, TAMOR & TAMOR

_________/s/________________________ Richard A. Tamor, Esq. Attorneys for Defendant, Michael Northcutt

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EXHIBIT A

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