United States District Court, E.D. Michigan, Southern Division
AMENDED OPINION & ORDER DENYING DEFENDANT ANDRE
BUTLER'S MOTION FOR DISCLOSURE OF INFORMANTS AND DETAILS
OF AGREEMENTS (DKT. 132)
A. GOLDSMITH United States District Judge.
matter is before the Court on Defendant Andre Butler's
motion of disclosure of informants and details of agreements
(Dkt. 132). The Government has filed a response to the motion
(Dkt. 136), but Butler failed to file a reply brief in
support of his motion. For the reasons discussed below, the Court
denies Butler's motion.
is charged with conspiracy to possess with intent to
distribute heroin, in violation of 21 U.S.C. §
841(a)(1). Butler moves the Court for an order directing the
Government to reveal the identity of informants and any
agreements it has with the informants at least thirty days
before trial. Mot. at 1. According to Butler, review of
discovery “suggests that a portion of the
government's case will be presented through witnesses who
are government informants, have criminal records or previous
contacts with the criminal justice system.”
Id. at 4. Although Butler refers to
“informants, ” there is only one informant
mentioned in his brief. Butler asserts that “[t]he
Government utilized confidential source (DEA-1) to identify
Mr. Butler as a participant in the narcotics
conspiracy.” Id. at 5. Butler does not offer
any further explanation about DEA-1 and there are no
attachments to Butler's motion. Presumably, Butler is
referring to the confidential source identified in Special
Agent Brandon Carrier's Affidavit in support of the
application to search Butler's home. See Ex. 1
to Gov't Resp. to Mot. to Suppress, Cavell Street Search
Warrant & Aff., ¶¶ 5-6 (Dkt. 131-1). DEA-1 is
the informant who provided the DEA with information related
to Defendant Nicolas Medina-Liborio's alleged drug
trafficking organization, and identified Butler as one of his
STANDARD OF DECISION
contrast to the broad scope of discovery in civil cases, the
discovery available to a criminal defendant is relatively
constricted. For most criminal prosecutions, there are three
governing rules that “‘exhaust the universe of
discovery to which [a] defendant is entitled.'”
United States v. Watson, 787 F.Supp.2d 667, 672
(E.D. Mich. 2011) (quoting United States v. Presser,
844 F.2d 1275, 1285 n.12 (6th Cir. 1988)). The first is the
Brady doctrine, derived from Brady v.
Maryland, 373 U.S. 83 (1962), which requires the
Government to disclose evidence that is favorable to the
accused and material to guilt or sentencing, as well as
evidence that could be used to impeach the credibility of a
government witness. Watson, 787 F.Supp.2d at 672
& n.5. The second is Federal Rule of Criminal Procedure
16(a), which “requires the government to disclose, upon
a defendant's request, any oral or written statements of
the defendant, the defendant's prior record, any
documents or tangible evidence within the government's
possession, custody or control [that are material to the
defense or to be used in the Government's case-in-chief],
reports of examinations or tests, and a summary of any expert
witness testimony.” Watson, 787 F.Supp.2d at
672 (citation and quotation marks omitted); Presser,
844 F.2d at 1285 (“[D]iscovery afforded by Rule 16 is
limited to the evidence referred to in its express
provisions.”). The third is the Jencks Act, 18 U.S.C.
§ 3500, which “‘generally requires the
government, on motion of a defendant, to produce statements
in its possession of witnesses who testify at
trial.'” Watson, 787 F.Supp.2d at 672
(quoting United States v. Short, 671 F.2d 178, 185
(6th Cir. 1982)); 18 U.S.C. § 3500(b); see also
United States v. Davis, 306 F.3d 398, 421 (6th Cir.
2002) (“When Brady material sought by a
defendant is covered by the Jencks Act . . . the terms of
that Act govern the timing of the government's
disclosure.”); Presser, 844 F.2d at 1282-1285
(holding that neither Brady, Giglio v. United
States, 405 U.S. 150 (1972), nor Rule 16 gives a
defendant the right to broad pretrial discovery of
impeachment evidence, the disclosure of which is instead
controlled by the Jencks Act).
seeks a court order to require the Government to turn over
the names and addresses of any informants the Government used
in this case, as well as the details of the agreements those
informants may have with the Government. Mot. at 1 & 5.
Butler cites the Sixth Amendment's Confrontation Clause,
Federal Rule of Evidence 607, and a handful of cases to
support his position, but without any meaningful explanation.
Id. at 5-6. Butler then makes the following
conclusory argument: “‘DEA-1' is one of the
most damaging potential witnesses against Defendant. Butler
certainly should be given the opportunity to prepare to
confront this accuser.” Id. at 5. The
Government argues that the law does not support the relief
requested. Gov't Resp. at 1. Additionally, the Government
recognizes its obligations to make certain disclosures under
Federal Rules of Criminal Procedure 16, Brady, and
Giglio, and maintains that it will make such
disclosures fourteen days before trial and continue to comply
with these obligations in a timely manner. The Government has
the better part of the argument.
Disclosure of Confidential Informant's Identity
the pretrial disclosure of a confidential informant's
identity, the Court agrees with the Government that a
criminal defendant is not entitled as a matter of right to a
list of the government's witnesses in advance of trial.
Weatherford v. Bursey, 429 U.S. 545, 559 (1977)
(“It does not follow from the prohibition against
concealing evidence favorable to the accused that the
prosecution must reveal before trial the names of all
witnesses who will testify unfavorably.”); United
States v. Davis, 306 F.3d 398, 420 (6th Cir. 2002)
(“[O]rdinarily, a defendant is not entitled to a list
of the names . . . of the government's
witnesses.”); United States v. McCullah, 745
F.2d 350, 353 (6th Cir. 1984) (“This court . . . has
firmly established that defense counsel is not entitled to
know in advance of trial who will testify for the
government.”); United States v. Kendricks, 623
F.2d 1165, 1168 (6th Cir. 1980) (per curiam) (“It is
well recognized that defendants cannot obtain lists of
prosecution witnesses as a matter of right.”);
United States v. Conder, 423 F.2d 904, 910 (6th Cir.
1970) (“[T]he names and criminal records of government
witnesses are not discoverable under Rule 16(b).”).
Nevertheless, a district court has the inherent authority to
order pretrial disclosure of the government's witnesses.
See Kendricks, 623 F.2d at 1168 (recognizing that
the district court has discretion to order the prosecution to
produce a list of prosecution witnesses); Watson,
787 F.Supp.2d at 674 (collecting cases and ordering
disclosure ten days before trial).
this authority, the Government may (as it has here) invoke
the so-called “informer's privilege” to
withhold certain information from disclosure, including an
informant's identity. Roviaro v. United States,
353 U.S. 53, 59-60 (1957); see also United States v.
Sharp, 778 F.2d 1182, 1185 n.1 (6th Cir. 1985) (per
curiam) (noting that this is the government's privilege
despite being referred to as an informer's privilege).
Because this privilege is limited by the “fundamental
requirements of fairness, ” Roviaro, 353 U.S.
at 60, “information about a confidential informant (or
the informant's testimony itself) may be admitted if the
revealing evidence ‘is relevant and helpful to the
defense of an accused, or is essential to a fair
determination of a cause, '” United States v.
Sierra-Villegas, 774 F.3d 1093, 1098 (6th Cir. 2014)
(quoting Roviaro, 353 U.S. at 60-61). Determining
whether the Government must disclose the identity of an
informant requires a careful balancing of “the public
interest in protecting the flow of information against the
individual's right to prepare his defense.”
Roviaro, 353 U.S. at 62. This decision will
ultimately be left to the Court's discretion and 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.
disclosure is not warranted when the possible relevancy of an
informant's identity is based on “mere conjecture
or supposition.” United States v. Doxey, 833
F.3d 692, 707 (6th Cir. 2016). Instead, the defendant bears
the burden of providing some evidence that disclosure of the
informant's identity would substantially assist his
defense before disclosure will be warranted. Id.
(affirming district court's refusal to disclose
informant's identity because the defendant “merely
argued that disclosure of the [confidential informant's]
identity would allow him to assess the strength of the
government's case”); see also United States v.
Ray, 803 F.3d 244, 274 (6th Cir. 2015) (affirming
district court's refusal to compel disclosure of
confidential informant's identity because the defendant
“merely argued that the [confidential informant] was
the person that formed the facts for the issuance of the
search warrant, and so in order to present any viable
defense, the requested information was necessary”);
United States v. Moore, 954 F.2d 379, 381 (6th Cir.
1992) (affirming district court's refusal to compel
disclosure of confidential informant's identity because
the defendant “advanced no more than a simple statement
that [the informant's] testimony might assist in his
defense”); Sharp, 778 F.2d at 1186-1187
(holding that district court abused its discretion by
ordering disclosure of informant's identity based solely
on defense counsel's unsworn representations that
disclosure would be relevant and helpful to his defense).
has failed to demonstrate how disclosure of any
informant's identity would substantially or materially
assist his defense, or that disclosure was essential to a
fair trial to overcome the informer's privilege.
Moore, 954 F.2d at 381; United States v.
Hammons, 411 Fed.Appx. 837, 843 (6th Cir. 2011);
United States v. Sales, 247 Fed.Appx. 730, 734-735
(6th Cir. 2007). Instead, he merely asserts that he
“certainly should be given the opportunity to prepare
to confront this accuser.” Mot. at 5. Having opted not
to file a reply brief, Butler offers no further explanation
in support of his position. As in Doxey,
Ray, Moore, Sharp,
Hammons, and Sales, among others, this sort
of conclusory argument is insufficient to warrant disclosure
of a confidential informant's identity. Nor is this
conclusory assertion sufficient to warrant an in
camera hearing. See Sierra-Villegas, 774 F.3d
at 1099 (“[A]n in camera hearing is not required when
the defendant fails to identify how the informant's
testimony could be relevant or helpful.” (citing
Sharp, 778 F.2d at 1187)). Therefore, this aspect of
Butler's motion is denied.
Pretrial Disclosures of Agreements Between the ...