The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
A superseding indictment filed February 12, 1991 charges
defendants with conspiring to possess heroin with intent to
distribute in violation of 21 U.S.C. § 841(a)(1). Count 2 charges
defendant Norman Ransom ("Ransom") with illegal use of a firearm
in relation to a crime of drug trafficking under
18 U.S.C. § 924(c)(1).
On May 6, 1991 the Court heard oral argument on various motions
filed by defendants Carmelita Francis Grant ("Grant"), Ransom,
Sean Brockington ("Brockington") and Angela Richard ("Richard").
The Court reserved decision on the motion of Grant, joined by
Ransom, Brockington and Richard, to compel the Government to
disclose the identity, social security number, address and
criminal history of the Government's confidential informant
("C/I") or, in the alternative, to make him available for counsel
to interview pursuant to Rule 12 of the Federal Rules of Criminal
The original complaint, filed Nov. 28, 1990, alleges that in
November 1990 the C/I spoke on the telephone with defendant
Charles David Wray ("Wray") regarding the sale of three kilograms
of heroin. Complaint ¶ 1. On November 26, 1990 the C/I allegedly
met with Wray and an unidentified white male in midtown Manhattan
and agreed meet the following day when Wray would deliver one
kilogram of heroin in exchange for a down payment of $20,000 from
the C/I. Id. ¶ 2. The complaint further alleges that on
November 27, 1990 the C/I met with Wray and Ransom at the same
location and walked to a parked car in which Grant was sitting.
Id. ¶ 3. Ransom allegedly said that Grant knew what was going
on, picked up Grant's purse which contained $20,000 in cash and
showed it to the C/I. Id. Law enforcement agents immediately
moved in and arrested Wray, Ransom and Grant. Id. ¶ 4.
The Government has stated that the C/I will be a witness at
trial. The Court takes judicial notice of the potential danger to
such witnesses at trial in narcotics cases of this magnitude and
the need to ensure the integrity of other undercover operations
in which the C/I may be involved. Under such circumstances the
rule in this circuit is that disclosure of the identity or
address of a confidential informant is not required prior to
trial unless the informant's testimony is shown to be "material
to the defense." See United States v. Saa, 859 F.2d 1067, 1073
(2d Cir. 1988), cert. denied, 489 U.S. 1089, 109 S.Ct. 1555,
103 L.Ed.2d 858 (1989). Even where the informant was both a
witness to and participant in the transactions charged,
disclosure is not required
where the defense has failed to show that the informant's
testimony "would [be] of even marginal value to the defendant's
case." United States v. Jimenez, 789 F.2d 167, 170 (2d Cir.
1986). In this case defendants have failed to make any showing
apart from bare assertions that the testimony of the C/I would be
material to their defense. Accordingly, defendants' motion is
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