The opinion of the court was delivered by: Denis R. Hurley, U.S.D.J.
One of the items of relief sought in the January 3, 2007 Notice of Motion of defendant Rodney Morrison ("Morrison" or "defendant") is an Order "[r]equiring the government to reveal the identities of confidential informants or produce them in open court." (Def.'s Jan. 3, 2007 Not. of Mot. at 4.) For the reasons provided infra, that request is denied.
REQUEST FOR NAMES OF CONFIDENTIAL INFORMANTS
1. Basis for Defendant's Request
In seeking the names of any confidential informants, defendant explains:
The confidential informants ("CIs") in this case possess information of obvious relevance to the ultimate issue of Mr. Morrison's guilt vel non, because, on information and belief, many either were allegedly involved in the charged criminal conduct, or worked at the Peace Pipe with Mr. Morrison and have firsthand knowledge of relevant facts. Under these circumstances, the identities of the CIs as well as their criminal histories should be disclosed.
(Def.'s Mem. in Supp at 23-24.) No further specificity is provided by defendant, such as the basis for his "information and belief" upon which the "alleged" need is predicated. Id.
The government maintains, correctly in my view, that the "summary assertions made by the defendant fail to meet [the requisite standard for disclosure]." (Gov't's Mem. in Opp'n at 29.)
As explained by the Supreme Court in Roviaro v. United States:
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. 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. 53, 59 (1957)(citations deleted). "As has been well said, 'the general disclosure of informants' identities to defense counsel is likely to compromise the fundamental public policy underlying the (informer) privilege.'" In re United States, 565 F.2d 19, 23 (2d Cir. 1977) (quoting Levine, The Use of In Camera Hearings in Ruling on the Informer Privilege, 8 U. Mich. J.L. Reform 151, 171 (1974)).
To overcome the qualified privilege against disclosure, "[t]he defendant bears the burden of showing the need for a disclosure of an informant's identity, and to do so must establish that, absent such disclosure, he will be deprived of his right of a fair trial." United States v. Fields, 113 F.3d 313, 324 (2d Cir. 1997)(citations deleted); see also United States v. Zuluaga, 651 F. Supp. 746, 752 (E.D.N.Y. 1986) and cases cited therein. "Speculation that disclosure of the informant's identity will be of assistance is not sufficient to meet the defendant's burden . . . ." See Fields, 113 F.3d at 324. Similarly, "[d]isclosure should not be directed simply to permit a fishing expedition . . . ." In re United States, 565 F.2d at 23. Whether a moving defendant has met his burden involves a "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. The circumstances relevant to the balancing process include consideration of "the crime charged, the possible defenses, [and] the possible significance of the informer's testimony . . . ." Id.
Although simply being "a participant in and witness to the crime charged," standing alone, is not sufficient to warrant disclosure, United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988), disclosure is typically ordered "'where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining ...