Opinion
02 CR 47 (S-3) (ILG)
January 10, 2003
MEMORANDUM AND ORDER
The defendant, Imbrieco, has orally, in open court and by letter dated January 28, 2003, requested the Court to direct "the government to disclose the identity of an informant who provided exculpatory evidence to a federal agent during the course of the investigation of the crimes charged herein." That request is bottomed upon a police report dated December 5, 1994, written by a New York City Detective named McGibbon. In that report, McGibbon memorialized a conversation with Jeff Troy. an FBI agent. who related that a reliable confidential informant ("CI") was told by someone else ("UI") the CI deemed reliable, that "Carmine did the shooting." Counsel for the defendant contacted Agent Troy from whom he learned that his informant was subsequently deemed to be unreliable by another agent of the FBI who discontinued working with him. That quadruple hearsay (UI-CI-Troy-McGibbon) is asserted to be exculpatory of Imbrieco who is charged with murdering Sabatino Lombardi.
Discussion
Any discussion of such request must begin with the seminal case ofRoviaro v. United States, 353 U.S. 53 (1957). The issue there was whether it was error for the "government to refuse to disclose the identity of an undercover employee who had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged." 353 U.S. at 55. The portions of that opinion which are almost invariably cited are, first the general observation that:
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 furnish information of violations of law to officers charged with enforcement of that law. Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151; In re Quarles and Butler, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080; Vogel v. Gruaz, 110 U.S. 311, 316, 4 S.Ct. 12, 14, 28 L.Ed. 158. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. 353 U.S. at 59.
And second, unfailingly advanced by the defendant seeking the identity of the informer is:
A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. 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 a fair determination of a cause, the privilege must give way. 353 U.S. at 60-61.
The questions to which this last observation give rise are: How reliable or specific must the "contents of his communication" be? How "essential to a fair determination" of the cause must the identity of the informer be? Those questions are fairly asked in a case such as this where the "communication" by the informer to the detective is based upon a communication he received from someone else whose reliability the informer ultimately found to be unreliable himself, purports to vouch for.
The answer to those questions, it is suggested, is to be found in a reading of Roviaro, beginning with the facts subsumed in the statement of the issue noted above. In essence, those facts were that an informer, who took a material part in bringing about the possession of the drugs by the defendant and was present with the defendant at the occurrence of the crime. (Emphasis mine). That that informer would be helpful to the defense on the issue of whether the defendant knowingly transported the drugs as charged led the Supreme Court to conclude that it would, and decide that it was reversible error to allow the government to refuse to disclose his identity. The facts here are of a decidedly different order.
The Court made significant reference to three Courts of Appeals cases which addressed the issue presented by Roviaro as distinguished from the issue presented in the majority of federal cases where the issue of the identity of the former arose in determining the existence of probable cause to make a warrantless arrest. In those cases, disclosure was not required if there was sufficient evidence apart from his confidential communication.
The cases to which the Court referred were: Portomene v. United States, 221 F.2d 582 (5th Cir. 1955), United States v. Conforti, 200 F.2d 365 (7th Cir. 1953) cert. denied 345 U.S. 925 (1953), andSorrentino v. United States, 163 F.2d 627 (9th Cir. 1947). In each of those cases the Court held that the informer's identity must be disclosed.
In Portomene, the defendant was charged with selling heroin to an informer. His request that the identity of the informer be disclosed was denied at trial and deemed to be error on appeal. Citing Sorrentino, supra, the Court made the distinction between "the case where the informer is that and nothing more, in which case the defendant would not have been entitled to have his identity disclosed, and a case such as this one, where the informer is the person to whom the defendant is said to have sold [the drugs]. In such a case information as to this person's identity was material to the defense . . . ." 221 F.2d at 583-84.
In Conforti, supra, the defendant was charged with possession of counterfeit Federal Reserve Notes with intent to pass them. Agents of the Secret Service overheard the informer make arrangements with the defendant for the transfer of the Notes, saw the informer meet with the defendant who gave a package to the informer which contained counterfeit currency the agents then received from the informer. Holding that the defendant was entitled to disclosure of the identity of the informer, the Court once again drew the distinction between one who plays a part in a criminal transaction and one who is a mere informer, citing Sorrentino, 200 F.2d at 367.
In Sorrentino, the defendant was charged with possessing and selling opium. Government agents saw the defendant and an informer go into a house after arrangements for the sale of the opium was overheard and the informer thereafter turned over the opium to the agents. The Court held that the defendant was entitled to disclosure of the informer's identity but that denying it was harmless error because his identity was already known to the defendant. The distinction between an informer qua informer and an informer who was a participant in the crime was made and followed in Portomene and Conforti as already related.
The answer then to the questions posed in the light of those cases and the "probable cause" cases to which the Court referred is given inRoviaro. It is that "no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing 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 upon 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." 353 U.S. at 62.
The Court of Appeals in this Circuit acknowledged and adopted the distinction discussed above. In United States v. Russotti, 746 F.2d 945 (2d Cir. 1984), the Court had occasion to address the issue which arose in an unusual setting — whether the witness was properly held in contempt for refusing to comply with the court's direction to disclose the names of informers. In deciding that he was not, the Court wrote, at 949-50: "It has consistently been held that an informant's identity need not be disclosed unless `essential to the defense.' Disclosure has been required at trial where the informant is a key witness or participant in the crime charged. someone whose testimony would be significant in determining guilt or innocence." (internal citations omitted).
United States v. Roberts, 388 F.2d 646, 648-49 (2d Cir. 1968) (recognizing "that in many cases the request for an informant is a diversionary tactic."); United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988) (The defendant is generally able to establish a right to disclosure "where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence.") See also United States v. Jiminez, 824 F. Suff. 351, 364-66 (S.D.N.Y. 1993).
That in balancing the competing interests, the scales will be weighed in favor of disclosure where the informer is something more than an informer but a person who was present at and witnessed the crime or was a party to it rather than a "mere" informer is plainly signaled by Roviaro to be the right answer.
In this case, the informer and the "someone else" are nothing more than that — an informer and someone else, and the scales, therefore, tip decidedly in favor of non-disclosure.
For all of the foregoing reasons, Imbrieco's motion for the disclosure of the informant's identity is denied.
SO ORDERED.