Free Motion for Disclosure - District Court of Delaware - Delaware

Case 1:08-cr-00102-JJF

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. DWAYNE SKINNER, Defendant.

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Criminal Action No. 08-102-JJF

DEFENDANT SKINNER'S MOTION FOR DISCLOSURE OF INFORMANT IDENTITY AND EXCULPATORY EVIDENCE

AND NOW comes the defendant, Dwayne Skinner, by his attorney Luis A. Ortiz of the Federal Public Defender's Office, and pursuant to the Due Process Clause of the Fifth Amendment, files this Motion for Disclosure of Informant Identity and Exculpatory Evidence. 1. Count One of the indictment charges possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). 2. Count Two charges possession with intent to distribute cocaine base, in violation of

21 U.S.C. § 841(a)(1). 3. Count Three charges possession of a firearm in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. § 924(c)(1)(A). 4. The indictment alleges that these offenses were committed on or about June 12, 2008.

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5.

On June 12, 2008, defendant was one of several individuals sitting in a parked vehicle

near the defendant's home in the City of Wilmington. 6. Defendant was searched by the Wilmington Police, and was found to be in possession

of 2.2 grams of cocaine base. 7. 8. Defendant was also found in proximity to the handgun identified in the indictment. In a statement to police, the defendant admitted that he possessed the cocaine base

for purposes of sale. 9. Defendant further admitted that he had handled the firearm on a previous occasion,

when he had attempted to deliver the firearm to a third person. 10. Defendant did not admit that he possessed the handgun for the purposes of facilitating

a drug trafficking crime. 11. Contemporaneous with defendant's arrest, Wilmington Police conducted a search of

defendant's home. 12. 13. The search was conducted pursuant to a search warrant. In the affidavit applying for the search warrant, local police cited information received

from a confidential informant. 14. The confidential informant had reported that defendant sold crack cocaine from inside

and outside of his residence, and that he hid the crack cocaine in various locations near his home. 15. There is no indication, from the text of the search warrant affidavit, that the

confidential informant reported seeing the defendant use, possess, or brandish a firearm during the course of his drug trafficking crimes.

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16.

It is defendant's theory of defense that there is reasonable doubt as to whether

Mr. Skinner possessed the handgun for the purpose of facilitating a drug trafficking crime. 17. It is relevant to this defense to show that defendant had been seen by the confidential

informant engaged in drug trafficking crimes, but had not been seen using, possessing, or brandishing firearms. 18. The search warrant affidavit reflects that defendant's course of conduct as a drug

dealer was known to the confidential informant. 19. If the confidential informant was familiar with defendant's drug dealing, and if the

informant observed that the drug dealing was conducted without the apparent use, possession, or brandishing of firearms, such testimony would be both relevant and helpful to the defense. A. MOTION FOR DISCLOSURE OF INFORMANT IDENTITY 20. The Supreme Court has recognized the government's interest in protecting the identity

of confidential informants, but has also recognized that the government's interest must give way "where the disclosure of an informer's identity, or 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." Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 628 (1957). 21. Because there is "no fixed rule with respect to [when] disclosure is justifiable," trial

courts are left with the job of "balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." Id., 353 U.S. at 62, 77 S.Ct. at 628. 22. Where the confidential informant may have information which is relevant and helpful

to the defense, the district court is authorized to conduct an in camera examination of the confidential informant. United States v. Jackson, 384 F.2d 825, 827 (3d Cir. 1967). 3

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23.

The in camera examination should be conducted without the presence of the

prosecutor or defense counsel. United States v. Savage, 969 F.Supp. 450 (E.D. Mich. 1997). 24. If the information known to the informant is deemed by the Court to be relevant and

helpful to the defense, the informant's identity and address should be disclosed to defense counsel, so as to facilitate a possible interview and the service of a trial subpoena. B. MOTION FOR DISCLOSURE OF EXCULPATORY EVIDENCE 25. Pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), defendant has the

right to disclosure of exculpatory evidence. 26. The District Court has the authority to conduct an in camera inspection of documents

which may contain Brady information. 27. An in camera inspection should be conducted if the defendant makes "at least some

plausible showing" that the documents contain information that is "both material and favorable to his defense." Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15, 107 S.Ct. 989, 1002 n.15 (1987). 28. If the informant provided police with descriptions of defendant's drug dealing

activities, and if the informant observed that the drug dealing was conducted without the apparent use, possession, or brandishing of firearms, then the informant's observations are supportive of defendant's theory of defense, and those observations should be disclosed under Brady. 29. Defendant seeks disclosure of all notes, reports and memoranda, prepared by law

enforcement officers, reflecting the informant's descriptions of defendant's unlawful conduct. 30. Defendant also seeks disclosure of all notes, reports and memoranda, composed by

the confidential informant and submitted to law enforcement, reflecting the informant's description of defendant's unlawful conduct. 4

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31.

Defendant requests that the Court examine these documents in camera, to determine

whether the documents should be disclosed to the defense under Brady.

WHEREFORE, it is respectfully requested that defendant's Motion for Disclosure of Informant Identity and Exculpatory Evidence be GRANTED, and that the Court order as follows: a. that the confidential informant be produced for in camera questioning by the District Court; that the government produce for in camera inspection all notes, reports and memoranda, prepared by law enforcement, reflecting the confidential informant's observations of illegal activity by the defendant; and that the government produce, for in camera inspection, all notes, reports and memoranda, prepared by the informant and submitted to law enforcement, reflecting the informant's observations of illegal activity by the defendant.

b.

c.

Respectfully submitted,

/s/ Luis A. Ortiz LUIS A. ORTIZ, ESQUIRE Assistant Federal Public Defender One Customs House, Suite 110 704 King Street Wilmington, DE 19801 302-573-6010 [email protected] Attorney for Defendant Dwayne Skinner DATED: July 31, 2008

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff, v. DWAYNE SKINNER, Defendant.

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Criminal Action No. 08-102-JJF

ORDER OF COURT AND NOW, this ___________ day of ______________________, 2008, upon consideration of Defendant Skinner's Motion for Disclosure of Informant Identity and Exculpatory Evidence, it is hereby ordered as follows: a. that the confidential informant shall be produced for in camera questioning by the District Court at the following date and time: _____________________________________________________________; that the government shall, on the same date, produce for in camera inspection all notes, reports and memoranda, prepared by law enforcement, reflecting the confidential informant's observations of illegal activity by the defendant; and that the government shall, on the same date, produce for in camera inspection all notes, reports and memoranda, prepared by the informant and submitted to law enforcement, reflecting the informant's observations of illegal activity by the defendant.

b.

c.

BY THE COURT:

__________________________________ Honorable Joseph J. Farnan, Jr. United States District Court