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United States v. Groce

January 2, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CURTIS GROCE, DEFENDANT.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

This case was referred to the undersigned by the Hon. John T. Elfvin, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. (Docket # 11). The case was subsequently transferred to the Hon. Richard J. Arcara.

PRELIMINARY STATEMENT

The defendant, Curtis Groce, is charged in an indictment with violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Docket #1). He has filed an omnibus motion*fn1 wherein he seeks: (1) "disclosure of the identities of all governmental informants;" (2) discovery and production of "items" or "information to which the defendant is entitled" under Fed. R. Crim. P. 16; (3) "production of Brady material" and "disclosure of witness statements;" (4) "disclosure of evidence pursuant to Rules 404(b), 608 and 609 of the Federal Rules of Evidence ("F.R.E."); (5) "preservation of rough notes and other evidence;" (6) permission allowing defense counsel to actively participate in voir dire; (7) "pre-trial production of governmental summaries;" (8) permission "to voir dire government experts outside the presence of the jury;" (9) disclosure of grand jury transcripts; and (10) permission "to make other motions." (Docket # 3).

The government has filed its response to the defendant's requests as well as a reciprocal motion pursuant to Rule 16 of the Fed. R. Crim. P. (Docket # 6).

Each of the aforesaid requests will be addressed herein.

DISCUSSION AND ANALYSIS

1. Defendant's Request For Disclosure Of The Identities Of All Government Informants

The defendant requests "disclosure of the names, addresses and criminal records of all informants utilized by the government in its investigation of this case." (Docket # 3, p.11).

The defendant has failed to sufficiently state a basis for requiring the disclosure of this information or "that the testimony of the informant would [be] of even marginal value to the defendant's case." United States v. Jiminez, 789 F.2d 167, 170 (2d Cir. 1986). As a result, the holding of the Court of Appeals for the Second Circuit in United States v. Saa is dispositive of this request by the defendant wherein the Court stated:

The leading Supreme Court case on this question, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1L.Ed.2d 639 (1957), holds that [w]here the disclosure of an informant'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 [informant's] privilege must give way. 353 U.S. at 60-61, 77 S.Ct. at 628. The Court explained that "no fixed rule with respect to disclosure is justifiable." Id. at 62, 77 S.Ct. at 628. What is required is "balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. Whether non-disclosure is erroneous "must 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. See Rugendorf v. United States, 376 U.S. 528, 534-35, 84 S.Ct. 825, 829, 11 L.Ed.2d 887 (1964); United States v. Lilla, 699 F.2d 99, 105 (2d Cir. 1983); United States v. Ortega, 471 F.2d 1350, 1359 (2d Cir. 1972), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973).

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." United States v. Russotti, 746 F.2d 945, 950 (2d Cir. 1984); United States v. Roberts, 388 F.2d 646, 648-49 (2d Cir. 1968); see United States v. Price, 783 F.2d 1132 (4th Cir. 1986); United States v. Barnes, 486 F.2d 776 (8th Cir. 1973). In Roberts, the informant introduced an undercover agent to the defendant and was present when the defendant and the agent negotiated and transacted two sales of heroin. The Court, noting that the informant was "present during all the significant events," 388 F.2d at 649, found that he was "obviously a crucial witness to the alleged narcotics transactions," id., and therefore, his whereabouts should have been revealed to the defense if properly requested.

But disclosure of the identify or address of a confidential informant is not required unless the informant's testimony is shown to be material to the defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 870-81, 102 S.Ct. 3440, 3448, 73 L.Ed.2d 1193 (1982) (dictum); United States v. Lila, 699 F.2d at 105. As this Court's recent opinion in United States v. Jiminez, 789 F.2d 167 (2d Cir. 1986) makes clear, it is not sufficient to show that the informant was a participant in and witness to the crime charged. In Jimenez, the informant was both participant and witness, but the district court's refusal to order disclosure of his identity was upheld on the ground that the defendant had failed to show that the testimony of the informant "would have been of even marginal value to the defendant's case." 789 F.2d at 170. 859 F.2d 1067, 1073 (2d Cir. 1988); see also United States v. Fields, 113 F.3d 313, 324 (2d Cir. 1997).

Since the defendant has not made a sufficient showing that any informant's potential testimony is material to his ...


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