Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona GREGORY J. FOURATT (NM #9209) Special Assistant U.S. Attorney 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-03-730-PHX-SRB Plaintiff, v. Luis Cisneros, et al., Defendants. UNITED STATES' RESPONSE TO DEFENDANTS' MOTION FOR ORDER REQUIRING DISCLOSURE OF IDENTITIES OF ANONYMOUS WITNESSES

THE UNITED STATES OF AMERICA opposes the above-captioned motion. (Dkt.

12 1346). In this motion, Defendants request that the Court order the United States to disclose 13 the identities of the individuals identified as Sources I, III, and IV in the CWT-215 affidavit. 14 See Hrg. Exh. 1 at 26-30. For the following reasons, the Court should deny the motion. 15 United States Ordinarily May Withhold Identity of Confidential Informants 16 In Roviaro v. United States, 353 U.S. 53, 59 (1957), the Supreme Court recognized the 17 government's privilege to withhold the identity of confidential informants: 18 What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who 19 furnish information of violations of law to officers charged with enforcement of that law. The purpose of the privilege is the furtherance and protection of the 20 public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of 21 crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. 22 23 353 U.S. at 59 (internal citations omitted). 24 In the Ninth Circuit, courts assess and balance the following actors to determine whether 25 the privilege applies: (1) the degree of the informant's involvement in the criminal activity; (2) 26 the relationship between the defendant's asserted defense and the likely testimony of the 27 informant; and (3) the government's interest in non-disclosure. See United States v. Beltran, th 28 915 F.2d 487, 488-89 (9 Cir. 1990). The defendant "bears the burden of demonstrating the

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1 need for disclosure, and a mere suspicion that the information will prove helpful will not 2 suffice." United States v. Williams, 898 F.2d 1400, 1402 (9th Cir. 1990) (internal citation 3 omitted). 4 "A defendant who merely hopes (without showing a likelihood) that disclosure will lead

5 to evidence supporting suppression has not shown that disclosure will be `relevant and helpful 6 to the defense ... or is essential to a fair determination' of the case." United States v. Brown, 7 3 F.3d 673, 679 (3d Cir. 1993) (quoting Roviaro, 353 U.S. at 60-61). "[M]ere speculation 8 about the usefulness of an informant's testimony is not sufficient to warrant disclosure." 9 United States v. Mathis, 357 F.3d 1200, 1208 (10th Cir. 2004) (citing United States v. Brantley, 10 986 F.2d 379, 383 (10th Cir. 1993)). 11 If the disclosure of an informant's identity would tend to expose him or his family to

12 danger, the court may deny such a request for disclosure. See, e.g., United States v. Thomas, 13 348 F.3d 78, 85 (5th Cir. 2003) (no disclosure of identity required because court determined, 14 after in-chambers review of materials, that informant's safety was in jeopardy); United States 15 v. Straughter, 950 F.2d 1223, 1231-32 (6th Cir. 1991) (no disclosure of identity required 16 because court determined, after in-chambers review of pertinent materials, that informant's 17 safety would be jeopardized if identity revealed). 18 19 Defendants Have Failed to Make Sufficient Showing that Roviaro Privilege Gives Way Defendants rely on two pieces of evidence as the sole support for their claim that they are

20 entitled to the identity of the other confidential sources. See Mot. at 4. The first is the 21 testimony of Jack Sepulveda and the second is the affiants' knowledge vel non of real-time 22 audio monitoring capability at the Madison Street Jail. See id. Neither basis is sufficient to 23 obtain the identities of the other informants. 24 As an initial matter, Defendants appear to mischaracterize Sepulveda's testimony about

25 when he was "cut loose" by the affiants. See id. To the best recollection of the United States, 26 Sepulveda testified that, after his controlled buys of heroin at the Calle Tomi address, he 27 stopped answering the affiants' phone calls and refused to check in with them. Then he 28
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1 committed an armed robbery, for which he was arrested and jailed. And it was only after he 2 went back to jail on the armed robbery charge ­ in September 1999 ­ that the affiants were 3 able to contact him again. 4 Defendants also appear to mischaracterize Sepulveda's testimony about whether he was

5 willing to testify against the New Mexican Mafia or the Llamas Organization. See id. The 6 United States recalls that, on cross-examination, Sepulveda admitted that he told the affiants 7 that he did not want to testify. 8 Furthermore, Defendants overlook the many reasons now in the record that explain why

9 the affiants believed Sepulveda's services no longer could be used as part of the investigation: 10 (1) Sepulveda was a heroin addict; (2) Sepulveda was continuing to buy and use heroin without 11 the knowledge of the affiants; (3) Sepulveda was working off charges that would make his 12 testimony even more impeachable; (4) Sepulveda had dropped off the affiants' radar screen 13 and was refusing to stay in contact with them; (5) Sepulveda had, while released on his own 14 recognizance and supposedly cooperating with law enforcement, committed an armed robbery; 15 (6) Sepulveda did not want to testify against the New Mexican Mafia or the Llamas 16 Organization; and (7) the affiants believed that continuing to use Sepulveda, a former New 17 Mexican Mafia member in bad standing who was using an alias and a changed appearance (he 18 had grown a beard and a full head of hair), would present an unreasonable risk of danger to 19 Sepulveda. Nothing in the CWT-215 affidavit contradicts these reasons in a manner that 20 comes close to constituting a Franks violation. 21 Even more important, Defendants cannot use Sepulveda's testimony as a basis for

22 learning the identity of other confidential informants. Not only does that proposition fail as 23 a matter of logic, it is telling that Defendants have cited no case that would tend to support that 24 proposition. Defendants are not entitled to conduct a fishing expedition among Sources I, III, 25 and IV just because they were able to identify and question Source II. Defendants do not even 26 specify which statements in the CWT-215 affidavit attributed to Sources I, III, and IV that they 27 claim are false. Instead, it is quite apparent that Defendants simply want to learn the names 28
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1 of the other sources and then cast their nets in the sources' direction to see what they can find. 2 The courts have made clear that the mere suspicion that an informant's testimony may be 3 helpful is not sufficient to compel disclosure of the informant's identity. See supra at 1-2. 4 And, where the very lives of the informants and their families could be endangered by 5 disclosure of the informants' identities, courts require a much more particularized showing 6 than the one Defendants have made here. Given the history of witness murders and retribution 7 set forth in the CWT-215 affidavit and the record before the Court, no reasonable person can 8 doubt that the health and safety of still-undisclosed confidential sources will be imperiled if 9 their identities are disclosed. This Court should not take that risk, especially given the scanty 10 and entirely speculative showing Defendants have made here. 11 Defendants' argument that the evidence concerning jail call monitoring compels the

12 disclosure of the identities of Sources I, III, and IV is a non sequitur. The two literally have 13 nothing to do with each other. Whether the affiants were aware of the real-time monitoring 14 capability at the jail ­ or had justifiable reasons for not using it ­ is not relevant to whether 15 confidential sources were available for continued use by the affiants at the time the wiretap was 16 sought. 17 Under the balancing test articulated in Beltran, each of the factors weighs decidedly

18 against disclosure. Consequently, the Court should deny the motion. 19 20 At Most, the Court Should Conduct in Camera Review Before Ordering Any Disclosure At bottom, Defendants' motion appears to question the assertions in the CWT-215

21 affidavit that the four confidential sources listed in the affidavit no longer could be used in the 22 investigation. See Mot. at 4. On that limited issue, the Court may, but is not required to, 23 review evidence in camera to decide whether such assertions were intentionally false or were 24 made with reckless disregard for the truth. If the Court elects to proceed in that fashion, the 25 United States is prepared to provide the Court with evidence to review ex parte and in camera. 26 27 28
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WHEREFORE, for the foregoing reasons, the United States respectfully requests that the

2 Court deny the motion. 3 4 5 6 S/ Gregory J. Fouratt 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 8th day of November, 2005. PAUL K. CHARLTON United States Attorney District of Arizona

GREGORY J. FOURATT Special Assistant United States Attorney

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CERTIFICATE OF SERVICE

2 I hereby certify that on November 8, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of 3 Electronic Filing to the following CM/ECF registrants: 4 John Sears, Esq. 107 N. Cortez St. 5 Prescott, AZ 86301 6 Peter Schoenburg, Esq. 7
500 4th St., NW, Ste. 400 Albuquerque, NM 87102 1101 Lomas, N.W. Albuquerque, NM 87102-1952 2929 N. Central, Ste. 2100 Phoenix, AZ 85012 45 W. Jefferson, Ste. 403 Phoenix, AZ 85003 Michael Bernays, Esq. James Park, Esq.

111 W. Monroe, Ste. 1500
Phoenix, AZ 85003 James Belanger, Esq. 40 N. Central Ave., Ste. 1900 Phoenix, AZ 85004 Greg Kuykendall, Esq. 145 S. 6th Ave. Tucson, AZ 85701 Kari Converse, Esq. 122 Tulane, SE Albuquerque, NM 87106 Dan Maynard, Esq. 1800 Great American Tower 3200 N. Central Ave. Phoenix, AZ 85012 Michael Terribile, Esq. 111 W. Monroe, Suite 1650 Phoenix, AZ 85003

8 Billy Blackburn, Esq. 9

10 Larry Hammond and Debra Hill, Esqs. 11

12 Carmen Fischer, Esq. 13 14 15 111 W. Monroe St., Suite 1650
Phoenix, AZ 85003

16
Barbara Hull, Esq.

17 86 W. University Dr., Ste. 101A
Mesa, AZ 85201-6666

18 Joe Romero, Jr., Esq. 19 1905 Lomas, NW Albuquerque, NM 87104-1207 20 Joseph St. Louis, Esq. 21 216 N. Main Ave. Tucson, AZ 85701-7202 22 23 24 25 26 27 28

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