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

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40 North Central Avenue Phoenix, Arizona 85004-4429 Facsimile No.: (602) 734-3823 Telephone: (602) 262-5319 EMail: [email protected] James J. Belanger (011393) William S. Hicks (023263) Billy R. Blackburn (237) BLACKBURN LAW OFFICE 1011 Lomas Boulevard NW Albuquerque, NM 87102 (505) 242-1600 Email: [email protected] Attorneys for Defendant Angel Rivera

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, vs. Luis Cisneros, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) No. CR03-730-PHX-SRB DEFENDANTS' MOTION FOR ORDER REQUIRING DISCLOSURE OF IDENTITIES OF ANONYMOUS WITNESSES

Angel Rivera, on behalf of himself and all of the defendants in this case, pursuant to the Fifth Amendment to the United States Constitution and Rovario v. United States, 353 U.S. 53, 77 S. Ct. 623 (1957), moves that this Court order the Government to disclose the identities of all anonymous sources relied upon by investigating officers in their affidavit in support of wiretap authorization CWT-215, signed on November 4, 1999 (the "11/4/99 Affidavit") by Maricopa Superior Court Judge Gregory H. Martin. This motion is supported by the record in this case, the testimony adduced at the wiretap suppression hearing in this case, and the attached Memorandum of Points and Authorities.

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MEMORANDUM OF POINTS AND AUTHORITIES Although the Government may withhold the identity of confidential informants under certain limited circumstances, the applicability of this "informer's privilege" is limited by the "fundamental requirements of fairness." Rovario v. United States, 353 U.S. 53, 60, 77 S. Ct. 623, 628 (1957). As the Supreme Court held in Rovario: "Where the disclosure of an informer's identity . . . is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Id. (emphasis added). No fixed formula exists for determining when disclosure is required; rather, courts must "balanc[e] the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. According to the Rovario Court: "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."1 Id. When confidential informants are used to establish probable cause for a wiretap authorization (or other search warrant), the existence of false statements in the underlying affidavit is a factor that militates strongly in favor of disclosure of the informant's identity. In State v. Luciow, 308 Minn. 6, 15, 249 N.W.2d 833, 839 (1976), for instance, the Supreme Court of Minnesota instructed that "[o]nce a sufficient prima facie showing is made . . . that an affidavit . . . contains material false statements, the trial court shall . . . require disclosure of the identity of a confidential informant whose information is relied upon in the affidavit" (emphasis added). Similarly, the court in United States v. Swanson,

In this circuit, the defendant has the burden of showing the need for disclosure. United States v. Prueitt, 540 F.2d 995, 1004 (9th Cir. 1976), cert. denied, 429 U.S. 1063, 97 S. Ct. 790, 50 L.Ed.2d 780 (1977).

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399 F. Supp. 441, 446 (D. Nev. 1975), ordered the Government to disclose the identities of two confidential informants based upon a "serious doubt concerning the veracity of the affidavit."2 Other courts with doubts concerning the veracity of an affidavit have fashioned a compromise whereby the Government--though not required to publicly disclose the identity of a confidential informant--is ordered to make the informant available for in camera examination. See United States v. Hurse, 453 F.2d 128, 131 (8 th Cir. 1972) ("[I]n this situation the identity of the informant should be disclosed to the court and the court should satisfy itself on the issue of probable cause for the initial [search]."); United States v. Danesi, 342 F. Supp. 889, 895 (D. Conn. 1972) (allowing the Government two weeks to arrange for in camera examination of a confidential informant). Although, in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978), the Supreme Court reserved the question of whether a reviewing court must ever require disclosure of an informant's identity after a substantial preliminary showing of falsity, lower courts have continued to view misstatements in an affidavit as a key factor influencing whether fundamental fairness requires disclosure. In United States v. House, 604 F.2d 1135, 1139 (8th Cir. 1979), for instance, the Eighth Circuit implied that disclosure would be warranted if the defendant could "establish his allegation of perjury or reckless disregard [for the truth] by a preponderance of the evidence." The Tenth Circuit has similarly observed that "[i]n order to . . . obtain the disclosure of a confidential informant referred to [in an affidavit], the defendant . . . must make a substantial preliminary showing that the affiants knowingly made false statements or made statements in reckless disregard for the truth." United States v. Hernandez, 839 F.2d 988, 993-93 (10th Cir. 1987), citing Franks, 438 U.S. at 155-56, 98 S. Ct. at 2676-77.

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But see United States v. Fox, 790 F. Supp. 1487, 1494, n. 12 (D. Nev. 1992) (suggesting in dicta that the court's analysis in Swanson is no longer viable after Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978)).

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In the instant case, during the wiretap hearing the Defendants presented the testimony of Jack Sepulveda who is "SOURCE II" in the 11/4/99 Affidavit. See pages 2728 of the 11/4/99 Affidavit. Mr. Sepulveda was being used by the affiants to identify alleged drug houses operated by Raymond Llamas, to make purchases of heroin from the Llamas organization, and presumably to help infiltrate the Llamas drug organization. Id. As the Court will recall, Mr. Sepulveda contradicted many of the critical assertions attributed to him by the affiants in the 11/4/99 Affidavit. In particular, the affiants erroneously avowed to Judge Martin that Mr. Sepulveda was no longer in a position to assist the investigation "without his/her safety being placed in serious jeopardy." 11/4/99 Affidavit at 28. This erroneous assertion was critical because the issuing of the wiretap in this case was in large part dependent on assertions that further undercover investigation was unsafe and that cooperating witnesses could not get close to the targets of the investigation. Mr. Sepulveda testified that, after being cut loose by the affiants, he made many, many drug buys from Llamas sources and at the houses under surveillance. He also testified during the wiretap that, contrary to the assertions in the affidavit, he was wiling to testify again Llamas and other members of the Llamas organization. Defendants have only had access to one anonymous source ­ Jack Sepulveda. His testimony materially contradicts that of the affiants on the most critical predicates for the issuing of this wiretap. Other testimony, from an employee of the Maricopa County Jail, strongly suggests that the affiants who testified at the wiretap suppression hearing were, at a minimum grossly and likely recklessly uninformed about the eavesdropping capabilities available to them in the Madison Street jail. This evidence constitutes a substantial preliminary showing that the affiants knowingly made false statements or made statements in reckless disregard for the truth. As it pertains to the anonymous sources, this necessitates the issuance of an order requiring the government to disclose the identities of the remaining three anonymous sources in the 11/4/99 Affidavit.

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WHEREFORE, Defendants request an order from this Court requiring the government to identify the remaining three anonymous sources in the 11/4/99 Affidavit and for further relief as is appropriate under the circumstances. DATED this 3rd day of November, 2005. Billy R. Blackburn BLACKBURN LAW OFFICE 1011 Lomas Boulevard NW Albuquerque, NM 87102 and LEWIS AND ROCA LLP

By s/James J. Belanger James J. Belanger William S. Hicks Attorneys for Defendant Angel Rivera

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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 Peter Schoenburg John M. Sears James Sun Park

CERTIFICATE OF SERVICE I hereby certify that on November 3, 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 Electronic Filing to the following CM/ECF registrants: Michael B. Bernays [email protected], [email protected] Billy R. Blackburn [email protected], [email protected] Kari Converse Carmen Lynne Fischer [email protected]

[email protected], [email protected] [email protected]

Gregory James Fouratt

Larry A. Hammond [email protected], [email protected] Debra Ann Hill [email protected], [email protected], [email protected] Barbara Lynn Hull [email protected] Gregory John Kuykendall [email protected], [email protected] Daniel D. Maynard [email protected], [email protected] Glenn B. McCormick [email protected], [email protected], [email protected] [email protected], [email protected], [email protected] Joe Romero [email protected] [email protected], [email protected] [email protected], [email protected] [email protected]

Joseph Peter St. Louis Michael Terribile

[email protected], [email protected] [email protected]

Steven C. Yarbrough

I hereby certify that on November 3, 2005, I served the attached document by First Class mail on the following, who are not registered participants of the CM/ECF System:

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Death Penalty Law Clerk U.S. District Court Clerk's Office Office of the Death Penalty Law Clerk 401 West Washington Street Suite 321, SPC 10 Phoenix, AZ 85003-2119 s/Sherry A. Samford

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