Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Luis A. Cisneros, et al., 13 Defendants. 14 15 Pending before the Court is Defendants' Motion for Order Requiring Disclosure of 16 Identities of Anonymous Witnesses. (Dkt. 1346.) Defendants seek an order directing the 17 United States to disclose the identities of the remaining anonymous sources cited in the 18 wiretap affidavit submitted in support of CWT 215. The United States filed a response 19 opposing Defendants' motion. (Dkt. 1351.) 20 As Defendants note, the government has the privilege of declining to reveal the 21 identity of its informants, but "[w]here the disclosure of an informer's identity, or the contents 22 of his communication, is relevant and helpful to the defense of an accused, or is essential to 23 a fair determination of a cause, the privilege must give way." U.S. v. Ramirez-Rangel, 103 24 25 (1957)). 26 Factors to be weighed in determining whether the so-called "informer's privilege" 27 should be breached include the degree of the informant's involvement in criminal activity, 28
Case 2:03-cr-00730-SRB Document 1357 Filed 11/10/2005 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, v.

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

CR 03-730-PHX-SRB

ORDER

F.3d 1501, 1505 (9th Cir. 1997) (quoting Rovario v. United States, 353 U.S. 53, 60-61

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the relationship between the defendant's asserted defense and the likely testimony of informant, and the government's interest in non-disclosure. United States v. Gonzalo Beltran, 915 F.2d 487, 489­490 (9th Cir. 1990). The defendant bears the burden of demonstrating the need for disclosure. RamirezRangel, 103 F.3d at 1505. "He 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 for a fair trial." Id. (citation omitted). For the reasons set forth below, the Court agrees with the United States that the balance of interests here--the speculative nature of Defendants' claims of relevance versus the United States' interest in protecting the safety and security of its anonymous sources--favors maintaining the privilege. To meet their burden Defendants argue that disclosure of the identities of the anonymous sources cited in the affidavit is necessary to challenge the truthfulness of the wiretap affidavit. Defendants cite a number of cases in support of the proposition that when a defendant challenges an affidavit on the grounds that it contains false statements he is entitled to disclosure of the identities of the informants relied upon in the affidavit. While many of the cases relied upon by Defendants predate the Supreme Court's decision in Franks v. Delaware, 438 U.S. 154 (1978), and therefore are of limited analytical value, nevertheless they all require a more significant showing of material falsity than that offered by Defendants. Defendants' rely on the testimony of Jack Sepulveda, "Source II" in the wiretap affidavit, for their assertion that there are "serious doubt[s] concerning the veracity of the affidavit."1 United States v. Swanson, 399 F.Supp. 441, 446 (D.Nev. 1975). Sepulveda's

The United States disclosed Sepulveda's identity to Defendants prior to the suppression hearing on October 25, 2005. Defendants contacted Sepulveda, who is in the custody of the Arizona Department of Corrections, and learned that he disputed some of the statements made in wiretap affidavit. Based upon Defendants' representation regarding the -2Document 1357 Filed 11/10/2005 Page 2 of 5

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testimony contradicted some of the testimony of Detectives Clint Davis and Jose Soto, two of the three affiants, along with Detective Armando Saldate, responsible for preparing the wiretap affidavit, and a number of the assertions made in the affidavit itself. Davis and Soto testified, and their wiretap affidavit stated, that Sepulveda's safety would be jeopardized if they had continued to use him as an informant. According to the testimony of Davis and Soto, after his final undercover drug buy Sepulveda told the detectives that he had been "made" as a member in bad standing of the New Mexican Mafia. Sepulveda testified that he did not make such a comment to the detectives. Sepulveda's testimony fails to support a showing that the wiretap affidavit contains false information which would justify revealing the identities of the confidential sources cited therein. First, the Court finds that Sepulveda's credibility and recollections cannot be judged favorably when contrasted with those of Detectives Davis and Soto. Sepulveda was a drug addict with a self-described "pretty big habit" of one and a half grams of heroin per day. While released from custody to cooperate with the authorities, he cut off contact with the detectives, continued to buy and use heroin, and committed an armed robbery. It was only after his arrest for the armed robbery in September of 1999 that the detectives were able to contact him again. Whether Sepulveda was willing to work with the detectives at that point is of no relevance, because after he had committed a violent felony he was no longer in a position to assist them. Second, much of Sepulveda's testimony was consistent with that of Detectives Davis and Soto. While he denied that he had been "made," he agreed that he would have been in serious jeopardy if he had been identified. He also testified that he told the detectives that he was not willing to testify and that the detectives made clear to him that they could no longer use him after his September 1999 arrest. Whether Sepulveda knew Llamas or not,

nature of Sepulveda's expected testimony, the Court granted Defendants' petition for a writ of habeas corpus testificandum securing Sepulveda's presence at the hearing. Sepulveda testified on October 27, 2005. The wiretap affidavit cites three other confidential sources. -3Document 1357 Filed 11/10/2005 Page 3 of 5

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the Court credits the detectives' testimony and their statements in the affidavit that Sepulveda told them that he did know Llamas. Defendants have failed to show that the wiretap affidavit contains any false statements. Rather, the evidence shows that as of September 1999 Sepulveda was no longer in a position to assist the investigation and that his safety would have been in serious jeopardy had he been permitted to continue working with the detectives. Finally, nothing in Sepulveda's testimony, or elsewhere in the record, suggests that the wiretap affidavit contains false statements with respect to the other anonymous sources whose identities Defendants seek. Defendants have failed to meet their burden of showing that fairness requires disclosure of the sources' identities.2 They have presented "mere suspicion" that these sources, once identified, will provide evidence indicating that the wiretap affidavit contained misleading information. Such a showing is insufficient to merit a Franks hearing, let alone to overcome the informer's privilege. See United States v. Brown, 3 F.3d 673, 679 (3rd Cir. 1993) (refusal to order disclosure of confidential informant where the defendants failed to make a substantial preliminary showing of the affiant's untruthfulness was not an abuse of discretion, although defendants sought disclosure or informant's identity in hope that it would lead to evidence that would help them make a Franks showing); United States v. JaramilloSuarez, 950 F.2d 1378, 1387 (9th Cir. 1991); United States v. Kiser, 716 F.2d 1268, 1271-73 (9th Cir. 1983). The insufficiency of Defendants' showing is particularly evident when contrasted with the grave and legitimate safety concerns expressed by the United States.

Defendants' motion also cites testimony elicited at the suppression hearing to the effect that the facilities at the Madison Street Jail would have permitted live monitoring of inmate phone calls. For the purposes of the pending motion, the Court cannot discern the relevance of this testimony. In their wiretap affidavit the affiants did not assert as a basis for necessity the technological impossibility of eavesdropping on inmate calls. Therefore, the fact that such monitoring might have been logistically possible does not affect the affiants' credibility. -4Document 1357 Filed 11/10/2005 Page 4 of 5

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In announcing the "limited scope" of its ruling allowing evidentiary hearings to challenge the veracity of an affidavit, the Franks Court listed among its concerns the possibility that, "Defendants might even use the hearings in an attempt to force revelation of the identity of informants." Franks, 438 U.S. at 167. The Court also stated that it left open "the difficult question whether a reviewing court must ever require the revelation of the identity of an informant once a substantial preliminary showing of falsity has been made." Id. 170 (emphasis added). Because Defendants have not made a "substantial preliminary showing of falsity" on the part of Detectives Davis, Soto, and Saldate, and because serious safety concerns weigh heavily against disclosure, Defendants are not entitled to disclosure of the identities of the confidential sources cited in the wiretap affidavit. Accordingly, IT IS HEREBY ORDERED DENYING Defendants' Motion for Order Requiring Disclosure of Identities of Anonymous Witnesses. (Dkt. 1346.) DATED this 10th day of November, 2005.

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