United States v. Henderson

Full title: UNITED STATES of America, Plaintiff, v. Tyrone Eugene HENDERSON, Defendant.

Court: United States District Court, W.D. Michigan, Southern Division

Date published: Mar 13, 2023

661 F. Supp. 3d 725 (W.D. Mich. 2023)

Opinion

No. 1:22-cr-169

2023-03-13

UNITED STATES of America, Plaintiff, v. Tyrone Eugene HENDERSON, Defendant.

Joel Scott Fauson, Assistant U.S. Attorney, Erin Kane Lane, U.S. Attorney, Grand Rapids, MI, for Plaintiff. Cirilo Martinez, Law Office of Cirilo Martinez PLLC, Kalamazoo, MI, Tessa K. Muir, Springstead Bartish Borgula & Lynch PLLC, Grand Rapids, MI, Geoffrey Upshaw, Law Office of Geoffrey Upshaw, Grand Rapids, MI, for Defendant.

Paul L. Maloney, United States District Judge

Joel Scott Fauson, Assistant U.S. Attorney, Erin Kane Lane, U.S. Attorney, Grand Rapids, MI, for Plaintiff. Cirilo Martinez, Law Office of Cirilo Martinez PLLC, Kalamazoo, MI, Tessa K. Muir, Springstead Bartish Borgula & Lynch PLLC, Grand Rapids, MI, Geoffrey Upshaw, Law Office of Geoffrey Upshaw, Grand Rapids, MI, for Defendant. OPINION AND ORDER DENYING MOTION FOR DISCLOSURE Paul L. Maloney, United States District Judge

Defendant Tyrone Henderson, through counsel, filed a motion titled "Motion for Disclosure of Exculpatory Evidence and Documents Under Brady v. Maryland" (ECF No. 40). Through the motion, Defendant seeks discovery of evidence generated during an investigation that culminated with an application for a search warrant. The Court will deny the motion.

I.

The Government charges Defendant with three crimes: (1) possession with the intent to distribute 400 grams or more of fentanyl, 100 grams or more of heroin and 50 grams or more of methamphetamine; (2) felon in possession of firearms; and (3) possession of firearms in furtherance of a drug trafficking crimes (ECF No. 17 Indictment). The Government alleges the three crimes occurred on November 10, 2022, the day law enforcement officers executed a search warrant at 524 Florence Street in Kalamazoo, Michigan. An affidavit submitted with the application for the search warrant establishes that a confidential informant (CI), CI #331, conducted four controlled buys and that audio and video recordings of the four controlled buys exist.

According to the Government, Defendant was the only person in the residence when law enforcement executed the search warrant at 524 Florence. The residence has a single bathroom and a single bedroom. Officers found residency paperwork with Defendant's name on it. And, officers found no evidence that other individuals were living at the residence. In the open area of the combined kitchen and dining space, officers found a bag containing paraphernalia that could be used to prepare controlled substances for distribution. In another bag, officers found over 3 kilograms of heroin and fentanyl and between 5 and 6 grams of cocaine. In a third bag, officers found tablets that later tested positive for methamphetamine. In other bags in the area, officers found 3 assault weapons, a sight for a rifle and ten firearm magazines. Officers also found a wad of money totaling over $4,000, three digital scales, nitrile gloves and sandwich bags.

Officers found other evidence around the home relating to the distribution of controlled substances. In the basement, officers found a money counter. In the upstairs bedroom, officers found another assault weapon in a storage area behind a mirror. In a backpack containing Defendant's driver's license, officers found a pistol and two magazines for the pistol.

II.

Defendant filed a motion to suppress and this motion for discovery. In the introduction to the motion for discovery, Defendant identifies four broad categories of evidence he seeks. In the motion itself and in the conclusion, Defendant makes more narrow requests.¹

1 Among the requests for discovery, Defendant seeks recordings from a pole camera. The Government does not oppose that particular request and states that it "has produced the pole camera footage" (ECF No. 52 PageID.289). The Court considers the request for recordings from the pole camera moot.

The Government has an obligation to disclose certain evidence to a criminal defendant. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), our Supreme Court held that the government must disclose "evidence that is both favorable to the accused and 'material either to guilt or punishment.' " United States v. Bagley, 473 U.S. 667, 674, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (quoting Brady, 373 U.S. at 87, 83 S.Ct. 1194). The holding in Brady finds support in our Constitution's Due Process Clause which is violated when the government achieves a conviction by withholding evidence that would clearly support a claim of innocence. United States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988). In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Court held that the rule in Brady includes impeachment evidence. Bagley, 473 U.S. at 676, 105 S.Ct. 3375. Following Giglio, the Government must disclose "the contents of plea agreements with key government witnesses and under some circumstances may be required to disclose the identity of undercover informants who possess evidence critical to the defense[.]" California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (all citations omitted). The Sixth Circuit has never decided whether Brady applies to a suppression hearing. United States v. Taylor, 471 F. App'x 499, 520 (6th Cir. 2012); see United States v. Thomas, 835 F.3d 730, 734 (7th Cir. 2016) ("It is an unsettled question whether Brady applies to pretrial suppression hearings.")

Defendants in a federal criminal action do not have a constitutional right to discovery and Brady did not create one. Presser, 844 F.2d at 1281 (quoting Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977)). Rule 16 of the Federal Rules of Criminal Procedure governs discovery in federal criminal actions "which requires the government to disclose to the defense before trial only specific categories of evidence." Id. at 1284. Neither Brady nor Giglio, "gives a defense a general right to pre-trial discovery of evidence impeaching defense witnesses, where the prosecution denies that any such material is exculpatory and material under Brady." Id. at 1283. The holding in Brady does not require the government to "disclose promises of immunity made to individuals the government does not have testify at trial." United States v. Mullins, 22 F.3d 1365, 1372 (6th Cir. 1994). Under the Jencks Act "statements or reports made by a government witness must be disclosed, on defendant's motion, but only once the witness has testified on direct examination at trial." United States v. Baker, 562 F. App'x 447, 454 (6th Cir. 2014) (citing 18 U.S.C. § 3500).

In contrast to the Brady disclosure obligation, the Government may assert a legal "privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The Government's privilege is not absolute. "Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to the fair determination of a cause, the privilege must give way." Id. at 61, 77 S.Ct. 623. The defendant bears the burden of establishing how the requested disclosure would materially aid his or her defense. United States v. Moore, 954 F.2d 379, 381 (6th Cir. 1992); see United States v. Ray, 803 F.3d 244, 274 (6th Cir. 2015) ("A defendant must provide some evidence that disclosure of the informant's identity would assist in his defense before disclosure will be warranted."). "Mere conjecture or supposition about the possible relevancy of the informant's testimony is insufficient to warrant disclosure." United States v. Sharp, 778 F.2d 1182, 1187 (6th Cir. 1985) (citation omitted).

When a defendant requests the identify of a confidential informant, courts must balance

the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consider the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.

Roviaro, 353 U.S. at 62, 77 S.Ct. 623. The Sixth Circuit has considered requests for the disclosure of the identity of a confidential informant involved in controlled buys that were used to establish probable cause for a search warrant. When the charges against the defendant arise from evidence found during the execution of the search warrant, and the defendant is not charged with crimes that occurred during the controlled buys, the Sixth Circuit considers those confidential informants to be "tipsters" and not " 'an active participant in the events underlying the defendant's potential liability.' " United States v. Sales, 247 F. App'x 730, 735 (6th Cir. 2007) (quoting Sharp, 778 F.2d at 1186, n.2). Applying Roviaro to these situations, the Sixth Circuit has held that the district court does not err when finds that the relevant factors weigh against disclosure. See United States v. Ray, 803 F.3d 244, 273-74 (6th Cir. 2015) (". . . Ray was not charged with any crimes related to the controlled buys, thus the CI was not involved in, and could not testify about, the crimes for which Ray was charged and could not have provided testimony about any fact relevant to those charges."); United States v. Beals, 698 F.3d 248, 270 (6th Cir. 2012) ("Here, by contrast, the only role the confidential informant played was supplying reliable information to police that led to a fruitful search. . . . The informant helped orchestrate the search that lead to discovery of incriminating evidence, not the crimes themselves.") (italics in original). Other circuits have reached the same or similar conclusions. See United States v. Gayle, 400 F. App'x 689, (3d Cir. 2010); United States v. Edwards, 133 F. App'x 960, 963 (5th Cir. 2005); United States v. Bradley, 924 F.3d 476, 481-82 (8th Cir. 2019); United States v. Williams, 898 F.2d 1400, 1402 (9th Cir. 1990); United States v. Cruz, 680 F.3d 1261, 1263 (10th Cir. 2012); United States v. Vann, 336 F. App'x 944, 950 (11th Cir. 2009).

III.

A. Identification of CI #331 and Promises Made to CI #331

CI #331 participated in four controlled buys involving Defendant. Defendant requests the following disclosures about CI #331 (Id. PageID.157):

-any promises, implied promises, side agreements, or implied threats;

-cooperation agreement in place with law enforcement or the government related to Defendant's case;

-background and history;

-summary of payments that the CI received from law enforcement agencies in exchange for services as a CI; and

-photographs, serial numbers, and officer initials of a "buy money" give to the CI before the four alleged control buys with Defendant.

Defendant asserts that during the relevant time period, one individual assisted Defendant with home renovation projects at the residence at 524 Florence. Defendant was aware the individual had a criminal history and also had pending charges. Defendant contends that if the individual is the CI, then the CI "may not have freely, knowingly, and voluntarily consented to eavesdropping inside of 524 Florence Street." (ECF No. 42 PageID.156). Defendant contends that Brady and Giglio require the Government to provide information about any promises or deals with the CI that were offered to him.

Defendant has not met his burden for the information about CI #331 he requests. The Government indicates that it will not call as a witness any confidential informant should this case go to trial (ECF No. 52 PageID.289 and PageID.298). Defendant is not charged with crimes arising from the controlled buys. Rather, the evidence and information provided to the officer by the CI established probable cause to obtain the search warrant. The Sixth Circuit has not held that Brady and Giglio apply to challenges to a search warrant under these circumstances. Defendant has not established that the balancing of interests under Roviaro compels disclosure of information about the CI. Applying Sixth Circuit published and unpublished opinions, this CI would be considered a tipster, not an active participant in Defendant's alleged crimes. Defendant has not established that the identity of this CI or any of other information requested about the CI would be necessary for a fair trial.

B. Other Confidential Informant Files

Defendant appears to request the files on three other CIs, #1158, #941 and #1969, all of whom are referenced in the affidavit submitted with the application for the search warrant. The affiant states that, over the course of several months, each of the three CIs provided information that Defendant was selling controlled substances. The tips led law enforcement to begin investigating Defendant. In the pages of the motion for discovery prior to the discussion of the other CIs, Defendant identifies statements in the affidavit that Defendant contends are false. The allegedly false statements in the affidavit are unrelated to information contained in the three paragraphs where the three CIs are mentioned.

Defendant has not met his burden for the disclosure of the CI files. A desire to "substantiate the truth of the information presented in the search warrant" (ECF No. 42 PageID.160) does not demonstrate how the requested information will "materially aid" his defense. At best, Defendant speculates that he might find some useful information. Like CI #331, these three informants constitute tipsters and not active participants in the crimes allegedly committed by Defendant.

C. Audio and Video of the Controlled Buys

Defendant requests the Court order the Government to provide the audio and video of the four controlled buys because the evidence "may be used to impeach the testimony of #331, or the affiant who was eavesdropping" (ECF No. 42 PageID.161). Defendant asserts that the recordings would show if anyone else was present during the controlled buys. Defendant also contends his statements on the recordings should be disclosed under Rule 16(a)(1)(A) and (B). The Government opposes the motion because turning over the recordings would reveal the identity of the CI. As part of its response, the Government includes a screenshot, a still image, from each of the four recordings.

Defendant has not met his burden for this request. First, Rule 16 does not require the Government to provide Defendant with the recordings. The disclosures required by Rule 16 are subject to restriction and denial for good cause. Fed. R. Crim. P. 16(d)(1). The need to protect the identity of a confidential informant provides good cause to restrict or deny access to the recordings. Applying Roviaro balancing, district courts in this circuit have declined to order disclosure of recordings under Rule 16(a)(1)(B)(i) when the recordings would disclose the identity of a confidential informant and the recordings were of a controlled buy that was not the factual basis for the crimes charged. See, e.g., United States v. Loden, No. 1:18cr16, 2018 WL 6308725, at *5 (E.D. Tenn. Dec. 3, 2018); United States v. Banks, No. 08cv20209, 2008 WL 2858735, at *2 (E.D. Mich. July 23, 2008). Additionally, Rules 16(a)(1)(A) and (a)(1)(B)(ii) apply to circumstances not present here: statements made by the defendant in response to interrogation by a person the defendant knew was a government agent. When the recordings were made, Defendant was not subject to interrogation by a person Defendant knew was a government agent. Second, Defendant only speculates, hopes, that the recordings would provide some information that would be useful to him. But, even if the recordings do not show images of larger quantities of controlled substances, that does not require the conclusion that the CI made a false statement about what he or she observed. The absence of images would establish only that the CI did not record images he or she allegedly observed.

IV.

Defendant has not met his burden to compel the disclosure of the requested information. The Court assumes that the Government takes its obligations under Brady, Giglio, and the Jencks Act seriously and will disclose any evidence that falls under that authority. None of the information requested by Defendant falls under Brady or Giglio. At this point in the litigation, none of the information requested by Defendant falls under the Jencks Act. The Government has asserted a need to protect the identity of confidential informants. None of the confidential informants were present for, involved with or otherwise participated in the crimes with which Defendant has been charged. Defendant has not established that the information he seeks is essential to his defense or to a fair trial. The balance of factors weigh against compelling disclosure of the requested information.

ORDER

For the reasons contained in the accompanying Opinion, the Court DENIES Defendant's motion for disclosure of exculpatory evidence (ECF No. 40). IT IS SO ORDERED.